Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698946303065.pdf (Uganda)
h/ \*1 FE rb.d EE ltlj ) ?1$|R PARLIAMLN I ()1 UCANDA REPORT OF' THE SECTORAL COMMITTEE ON LEGAL AND PARLIA]VIENTARY AFFAIRS OI{ THE ANTI - HOMOSEXUALITY BILL, 20.23 ( OFFICE OF THE CLERK TO PARLIAMENT PARLIAMENT BUILDING KAMPALA-UGANDA MARCH 2023 & 1.O.
INTRODUCTION On Thursday, 9th March, 2023, a Bll entltled "The Antl-Homosexuahty B 1, 2023" \'as, rn accordance wrth Rule 128 oI the Rules of Procedure of Parhament, read for a flrst trme and referred to the Commrttee on Legal and Parhamentary Affalrs for scruhny The B l rs a Pnvate Member's B l sponsored by Hon Basalrwa Asuman (Mp Bugrl Munrcaphty) 2.O.
OBJECT OT' THE BILL The oblect of the B l rs to estabhsh a comprehensrve and enhanced legrslatron to protect the tradlhonal famrly by- (a) prohrbrtmg anv form of sexual relatlons between persons of the same sex and the promotron or recognrtron oi sexual relatlons between persons of the same sex, (b) strengthenlng the natron's capaclty to deal wrth emerglng tnternal and external threats to the tradltlonal, heterosexual famrly Thrs leglslatlon further recognrzes the fact that same sex attractlon ls not an lnnate and rmmutable characterrstlc, (c) protectlng the cherrshed culture of the people of Uganda, legal, rehglous, and tradltlonal famrly values of Ugandans agarnst the acts of nghts actlvlsts seekrng to lmpose therr values of sexual promrsculty on the people of Uganda, and d) protectrng chlldren and youth who are made vulnerable to abuse through homosexuahty and related acts &.
The Brll seeks to address the gaps 1n the provlslons o da for example the Penal Code Act, Cap 12O, whrch has no comprehenslve prouslon catenng for homosexuahty and malorly focuses on unnatural offences under sectron 145 and lacks provrsrons lor penahsrng the procurement, promotlng, drssemlnatlng ltterature and other pornographlc materl concernrng the offences of homosexuahtv As a result , there 1s need for a ws ln lJ -N @ legrslatron to enhance offences relatmg to homosexuahty and clear provlslons for chargrng, lnvestlgatlng, prosecutlng, convlctlng and sentencrng of offenders Thls leglslatlon seeks to supplement the provlsrons of the Constrtuhon of the Republrc of Uganda and the Penal Code Act, Cap l2O by crrmrnahzrng same- sex sexual acts and related acts 3.O.
METHODOLOGY In the process of analvzlng the 8111, the Commrttee recerved submlsslons from the followrng delegatlons.- I ii, iii.
The Mover ofthe Brll c b a, Hon Basalrwa Asuman Attorncy Gcncral's Chembcrs Hon Krryoowa Krwanuka Attorney General Mr Prus P Brnbonwoha Deputy Sohcltor General Ms Ohvra Natwazagye Senlor State Attorney Mr Lazaka Tlbakuno Mirlistry Ccndcr, Labour and Sociel Devclopment Hon Asamo Hellen Mr Ertu James Ms Tusaasrra Ruth c d Mr Bakaye Lubega State Attorney b. a d Dlrector, Mlnrstry of Gender Prrncrpal Officer, Mnlstry of Gender Ass Comm Mmlstry of Gender Mrntster of State for Drsabrlrty iv.
Ministry of Ethics at1d Intcrgrity Mlnlster of State for Ethlcs and Integrlty Commrssroner, Mlnlstry oI E lCS Legal Officer v. Office of Ditcctor of Pubtic Prosecutions a Hon Akello Rose Lrlly b Mr Moses Makumbr c Ms lrrbagrza Genevrene a Mr George Byansl b Mr James C)were c Ms Barbara Masrke Chref State Attorney Huma!

Rlghts Awarcncss and Promotion Forum a Dr Adrlan JJuuko Executrve rector s Deputy Dlrector of Pubhc Prosecubons Deput\.
Drrector of Pubhc Prosecutlon b Ms Justlne Bal)'a c Ms Flavla Zalwango d Ms Kabanzr Maureen Ugaade Police Force a Mr Tusemererwa James b Mr Muyango Kambada c Mr. Owona Isaac d Mr Beyanga Cornehus Chaptcr four Ugand.

a. Mr. Anthony Maslke b Mr Paul Wasswa vll.

vllt.

Program Drrector Program Dlrector Volunteer Commrssloner of PoLce (CPO Ass Supermtendent of Poltce (ASP) Ass Supenntendent of Pollce (ASP) Ass Supermtendent of Potlce (ASP) Ag Executlve Drector Head, Polcy and Development lia.
Law Developmctrt Ccntcr (LDC) a Mr Paul Mukrbr b. Ms Kaburungr Dorothy c. Ms Nuwemuhwezr Prane d Ms Kawesa Rose Nalule Family Lifc Nctwork x. a, Mr Stephen Langa b Mr Charles Tlrharse c Rev Francrs Oslre d Ms Sylvra Mumlslnza xi Coelition egaiast Homosexuelity W Head of Department Research Asslstant Research Assrstant Research Asslstant Executlve Dlrector Program Officer, Pohcy Program Officer, Devel Staff x11 xlll Pastor Male Solomon Mr Kasolo Solomon Executtve Dlrector Member Individuels xrv xv xvl xv11 xv111 Prof Tamale Sh,.v1a Dr Kabumba Busrngre Brshop Davrd Krganda Pastor Dr Martm Sempa Rev- C Chrrstrne Shrman va Professor of I-aw Senlor Lecturer of Law Presldent Of Pastors Forum Makerere Communlty Ch Cha laln of Parhament 3 o$ xlx xx xxt xx11 xxl1t xxw xxv xxvt xxvlt xxvlu xxtx xxx Pastor Kusaslra Samuel Pastor Fldson l\,,[uhawenrmano Vrsron Worshrp Centre Chrlstlan Lrvmg Water, Krbuye Pastor Herbert Kaytale Brshop Batera Geofrey Pastor Kaylzzr Denls Dr Luswata Herbert Ms Bukrrwa Marla Ms Grace Namatak Mr Mukrsa Ehsha Mr Anthony Muhwezr Mr Kanso Vrola Mr Oundo George Pastor Accord (U) Vrctory Church Kreka Gen Sec Uganda Medrcal Assn Women's Probono Inrtratrve Akrna Mama Wa Afrrca Vlchm of homosexuahty Advocate of Hlgh Court Advocate of Hrgh Court Ex- Gay Communlty Uganda Revrewed, The Constltutron of the Repubhc of Uganda,1995, the Penal Code Act Cap 120 and vanous court decrslons 4.O.
HOMOSEXT'ALITY IN UGANDA &, In Uganda, conduct amounttng to homosexuahty ls not recognlsed as a rlght under the Constltutlon of the Republlc of Uganda, 1995 and ls mstead treated as a cnme under varrous provtslo under sectlons 145, 146 and 129 ns of the Penal Code Act, Ca 20, speclflc Arhcle 31 of the Constrtuhon recognlses that men and women of the age of erghteen years and above have the rlght to marry and to found a famrly and entltled to equal rtghts tn marrtage, durrng marnage and at tts dlssolutlon Thrs provrsron recognlses that only men and women ln Uganda may have relattons and by extensron recognrses that sexual lntercourse/relatronshlps can onlv be legally performed between persons of the opposlte gender majorrty age wlth thelr e and voluntary consenL Where sex 1s pe ed rn 4 t' any other crcumstailces other than as referred to above, rt 1s treated as an unnatural act punlshed rn sectlons 145 and 146, rape under sectlon 123 or defilement under sectron 129 of the Penal Code Act respectrvely.
In the same vern, the Constltutlon recognlses the cultural drversrty of Uganda and recognrses, 1n artlcle 37 of the Constltutron every person's nght to belong to, enJoy, practlse, profess, malntaln and promote any culture, cultural rnstltutlon, Ianguage, tradltlon, creed or rehgron 1n communlty !r,1th others The Commrttee notes artlcle 126 (1) of the constltutton enshrrnes the cultural norms and values of the people of Uganda by requrrrng that Judlclal power ls denved from the people and rs exercrsed 1n conformrty wtth the law and wrth the values, norms and asprratrons of the people Uganda enloys rlch cultural dlversrty and although all are nchly drfferent, they do not recognlse same sex relatlons Whereas some few rndrvrduals have exlsted wrth such tendenctes, these were tsolated by socrety and ln some cases purushed ior such unnatural acts The prohlblhon agatnst homosexuahtv ls entrenched m the laws of Uganda and our cherrshed and shared cultural norms and values \K, Homosexualrty as an offence rs prescrrbed tn sectlon 145 of the Penal Code Act and 1s reproduced below- " 7 4 5.
Unnaturq.l olfences Ang person who- (a)ha.s carnal knouledge o.f ang person q.go,lnst the order o nqture; (b)has carnal knowledge of an qnlmal; or (c)permtts a tnale pcrson to haue carnql knowledge ol ht',,- o her q,gqinst the otder ol nqture, co',trmits qn oilence dnd is liable to imprisonmeftt lor ltje..
The above sectron specrfically prohrbrts and punrshes the conduct of a perso li'ho has carn or'ledge of any person agal st the order of nat oJ\ ( the conduct of a person who permlts a male person to have carnal knowledge of htm or her agarnst the order of nature Whereas the term "agalnst the order of nature" 1s not defrned under the laws of Uganda, at common law, the crrme agalnst nature or unnatural act has htstorrcally been a legal term 1n Enghsh-speaklng states ldentfymg forms of sexual behavlour not consrdered natural or decent and are legally punrshable offenses These sexual practlces that have hlstoncally been consldered to be "crrmes agatnst nature, rnclude sodomy and bestEhty.
In Uganda, Sechon 145 creates three standalone offences, namely- (") & Thc offcncc of beving carnel knowlcdgc of any pcrson agriDst thc order of mturc.
The offence of havrng carnal knowledge of any person agalnst the order of natrtre occurs where a person has anal sex wrth another person In the case of Christopher Mubiru Kislngtri Vs Ugafldq, HCCA No, loa of 2O7S court noted that for the offence of unnatural offence to be sustatned, the prosecuhon must prove that a person has had anal sexual act agalnst another person In the same decrston, court observed that the prosecutlon must prove that there was penetratron of the anus by a male sexual organ Thrs provlsron usually apphes agalnst a male person and lt 1s rrrelevant whether the vlctlm ts a woman or man (b) The offcncc of heving c.rnal knowledgc agait$t an animel, thrs here a person has carnal knowledge of an anrmal that the pe on rndeed had ence occurs w The prosecutron here must prove penetratlve sex \ 1th an antmal {c) Thc offencc of permitting a malc pcrson to havc carral knowledgc of anothcr pergon against thc order of naturc offen occurs where a person allo a male person to have ry 6 - wlth hlm or her Prosecutron must prove that there was penetraton ol the anus by a male sexual organ, although thls provrslon usually apphes agalnst a male person and rt 1s rrelevant whether the vrctrm ts a woman or man The Commrttee notes that tnsplte of the exlstence of the provrslons of sectlon 145 of the Penal Code Act, the Annual Crrme Pohce Reports have contlnually reported rncreased occurrence of conduct that are prohlbrted under sectlon 145 For mstance, the Annual Pohce Report for the last 5 years have reported lncreasrng cases of unnatural offences of sodomy, lesbramsm and bestrahty such as ln 2017 where 120 cases were reported, m 2018, 1O0 cases were reported, m 2019, 1O3 cases were reported, 79 cases were reported 1n 2020, 80 cases were reported m 2O2l ar,d 83 n 2022 The Commrttee rs also aware that the medta has recently been awash wrth reports of sodomy and lesbranrsm rn Ugandan schools and have reported that groomrng and recrurtment of school chrldren rnto homosexuahtlr' has taken shape m Uganda Incldents of teachers engagtng thelr students 1n homosexuahty are berng reported wlth rncreastng regularrty, schools have reported expelhng homosexual students whlle teachmg matenals recogntsrng and normahsrng same sex relatronshrps have found therr way rnto schools &.
The Commlttee rs further aware that a number of non-governmental organlsatrons have been found to drectly promote the normahsatlon of same sex relatlons rn Uganda For tnstance, the NGO Board suspended actrvltles of the Sexual Mlnorttres Uganda Ior ther acttvrtres tn promotrng the normahsatlon of same sex relatlons A11 the above lncldents are taklng place tn sptte of exlstence of rons that prohrbrt and ban unnatural sexual acts rn Uganda rs w 5.O.
GENERAL OBJECTIONS TO THE BILL The Commlttee recerved memoranda from a number of stakeholders who advanced both general and specrfrc objectlons to the B1l1 The Commlttee has examrned the obJectlons and reports as follows, 5.1, Duplicatlon of provisions in thc Pcnal Codc Aqt One of the most common obJectlons recerved by the Commlttee has been that the 8111 does not rntroduce anythlng new slnce the provrsions are already prescrlbed rn the Penal Code Act and other laws makrng the Btll unnecessary and redundant.
Dr Adrran JJuuko who made a presentatron on behalf of Human Rlghts Awareness and Promotton Forum (HRAPF) and the C1v1l Soclety Coahtron on Human Rrghts and Constltutronal Law (CSCHRCL) obJected to the Brll reasonrng that whereas the maJorlty of the clauses of the Brll are unconstltutronal, the rest are redundant and become useless once the unconstrtutlonal provtslons are removed The redundant clauses that he pomted out rnclude clauses 5(2) - (4), 7 ,9, 10, 11, 13, 15, 16 and 17 The same vlews were expressed by Dr Kabumba Busrngre, Sentor Lecturer, School of Lau', Makerere Unlverslty, Dr Svlvla Tamale, a retlred professor of Law, Mr Anthonl' Maslke, Ag Executlve Dlrector of Chapter 4 and Buk1r\I,a Marra of Women Pro bono Inrtlatrve, all who reasoned that the Blll 1s a duphcatron of the provlsron already rn place under the Penal Code and ls unnecessary W The Offlce of the DPP also oblected to the Brtl on grounds that the proposals contalned 1n the Btll should be lntroduced 1n the Penal Code Act rather than berng lntroduced rn the p posed Brll They reasoned that the Penal Code overtrme been dlstnte , chapter by chapter, leadrng to ng of the ro provlsrons.
The Attorney General advrsed that nothlng prevents Parhament from en new laws deed rmprovrng on exrstrn provrsrons of the law sq -k 8 emerglng challenges rn or of soclety rn so far as rt cautlons ltself to avold duphcatlon of provlslons The Commlttee has examrned the above asserttons as to the need to enact stand-alone leglslatron on homosexuahty and finds that, lt ls the mandate of Parhament to enact legrslatlon The Commlttee notes that whereas homosexuahtv as an offence already exlsts on the law book under the Penal Code Act, there rs need to redeflne the law, placrng emphasrs on the new and emergrng matters whlch are not contalned 1n the Penal Code Act such as promotron of homosexuahty and the recrultment of chrldren lnto homosexuahty whlch have been blamed for the rlsrng mcrdents of homosexualrty ln Uganda The Commlttee also took cognlsance ol the need to glve vlslbthty to the offence of homosexualrty by rntroductng a comprehensrve law that deals wtth the offence and all tts manfestattons, the ldentllicahon and rehabllltatlon of perpetuators and vlctlms of offences as well as deahng wlth mcldental matters such as compensatron, whlch cannot be rncluded tn the penal Code Act, a law of general appllcahon The Commlttee also observed that Homosexuallty ls a unrque offence whrch needs a specfic law to deal wtth lts manfestatlons and the rntroductlon of the B1l1 burlds on a strong foundatron already lard by Government and Parhament rn dealmg wrth new and emergrng matters of pubhc lnterest For lnstance, Parhament, when faced $'rth acts of terrorlsm rn Uganda enacted a specrfic law to comprehensrvely deal wlth terronsm and all rts manrfestatlon and removed those provrsrons from the Penal Code Act Llkewtse, the Antl- Corruptlon Act was enacted to glve vrslbthty to the flght agalnst corrup to comprehensrvely deal wrth the vtce of corruptron whlch had reached endemrc levels and could not be dealt wlth adequately under the penal Code Act These mterventlons were rnformed by the need to adequately address challenges faced
 rn respondrng to new and emergrng matters that had not been covered under the Code Act, a law that \,\'as made more than 1OO vears ,.9 & could not have antlclpated new developments and advancements that requlre adequate regulatlon at the tlme The Commlttee, gulded by the reasons above found that rt rs necessary to have matters of homosexuallty adequately dealt wlth 1n a stand-alone law rather than berng rncluded rn the Penal Code Act In dolng th1s, the Commlttee, as gurded by the Attorney General, wrll and cautlons rtself to ensure that there 1s no duphcatron of matters already rn the Penal Code to ensure the effectrveness of Iegrslatron On the rssue as to whether the B 1 1s necessary, the Commrttee has examtned the provrsrons sectron 145 of the Penal Code Act relatlng to the offence of homosexualrty and found that whereas the offence of unnatural offences has been apphed rn Uganda, 1t has a number of shortcomrngs whrch have prevented lts elfectrveness For tnstance- (a) the provrsrons of sectron 145 only requlres proof of actual carnal knowledge rn proof of the offence, maklng other sexual conduct not amountlng to carnal knowledge rrrelevant ln Christopher Mubh-u Xtstngtri Vs Ugand.q" HCCA No 7O8 o!
2015 court set aslde the convlctron of Mr Chrlstopher Mublru slnce the prosecutton dld not prove the flrst lngredlent of the offence (penetratron) beyond reasonable doubt, notwlthstandlng that the prosecutlon had brought evrdence that the accused person had engaged rn other sexual contact wrth the vrctrm of the offence Thls means that a person who does not have carnal knolr'ledge of a person but penetrates the person's mouth cannot be charged wrth the offence, thereby normahsrng and allowng such conduct between persons of the same sex The Br11 addr esses thts by proposrng a new nomenclature, as was adopted by the Penal Code Act, rn the offence of Defilement whrch does not entrely dependent on penetratlon alone for the commrssron of the offence OA 0) (b) the offence falls short of the clarrty expected of a penal provrslon under artrcle 28 (12) of the Constrtutron srnce rt does not define the ma1or elements of the offence rncludrng the phrase "carnal knowledge" and "agalnst the order of nature" yet these have to be proved by the prosecutlon.
The farlure to deflne the words and phrases whrch form part of the mgredrents of the offence leaves the provlsron vague and open to challenge for lnfnnglng artrcle 28 ll2l of the Constttutton The phrase "carnal knowledge" has been grven drverse mterpretatron bI, court owrng to the fact that the same phrase rs used tn other oflences such as the offence of rape under sectton 123 of the Penal Code Act, whereln court regards carnal knowledge to mean the penetratron of the vagrna, however shght, of the vtctlm by a sexual organ '"l,here sexual organ means a penrs Thus rf a man forcrbly penetrates a woman's anus or f he forcrbly lnserts any other obJect mto her vagtna or anus or rf he forces her to have fellatro (oral sex) wlth hlm or cunnrhngus (touchlng the female sex organ wrth the hps and tongue), such conduct does not amount to rape although 1t may constltute other Iess sertous offences such as lndecent assault In Ugdtadq.
v kgamusungu lvan, crl'a.
:inq,l sesslofl ccse Tvo 707/96 Hrgh Court held rnter aha that carnal knowledge means penetratlon of the sexual organ lnto the female sexual organ and rf there was no penetratlon, then the offence of rape rs not estabhshed It was further held n llgand.a v Oduang Dennis qnd Olc,ngq HCB 77 that tn rape cases, the prosecutlon must prove penetratlon of the male reproductlve organ lnto female reproductrve organ However, when tt comes to unnatural offences, court tn her llubiru Kislflglrt Vs Ugqnd.a defined carnal knowledge to mean penetratlon of the anus contrary to the definltton glven by Co ra Thrs makes the offence ol 1n cases rnvolvlng rape OD 11 * ( offences ambrguous ln lts current lorm smce of the maln lngredlent formlng thls offence ls mcapable of exact deflnltlon The Commlttee rs concerned that courts 1n Uganda have declared provlsrons that are vague unconstltutlonal, lncludlng 1n the case of Andreu MuJunl Muend.q.
and.

other Vs AG (consolldqted constltutlond.l petitlons No.72 of 2OOS qnd No.

3 of 2006) whereln Court declared the offence of sedltron unconstltutlonal for rnfrrngrng Artrcles 29(1) (a) and 43(2) (c) of the Constltutron Furthermore, tn Constltutio,1,o.l petition No.
73 of 2074, Centre for Domestlc Violence Preaentlon &qrryri I ors -VS- AG, court declared Sectlons 2, 11, 13, and 15 of the Antl Pornography Act, whrch defined and created the offence of pornography, unconstltutronal due to the vague deflnltlon of the offence of pornography Court reasons that offences that are prescrlbed vaguely prevent a person from temperrng hrs or her conduct so as not to be caught up by the provrsrons slnce they fall to provlde a preclse deftnltlon of the conduct they rntend to prevent The provlsrons also allow abuse of such provrslons by law enforcement offlcer srnce the prosecutlon of the olfence wrll depend on the mterpretatlon and sub;ectle understandrng of the provlslon by the prosecutlon, vls-a-vrs the conduct of the person, leadrng to lnequahty m the apphcatton of such laws Srgnrfrcantly though, the most lmportant rules of legahtv rn cnmmal law are "notlce" and "farr li'arnlng" and the State has a duty to ensure cttrzens have sufflclent notlce and fatr warnrng prohrbrted conduct and the correspondlng sanctrons o Therefore, the vagueness, uncertalnty and amblgutty that ls embedded rn the offence of unnatural offences make rt rmposslble to determrne what conduct ts acceptable and what conduct ts tn fact crt rsed and prohrbrted by law, and thts certalnty ts requfed DS \!'
& (c) (d) (e) the Constrtutron The Brll proposes to address these matters by provrdrng a clear and conclse dehnltlon of the term homosexuahty as well as all the workmg deflmhons of all words that mlght be confused as used rn the B 1 The provrsron only crrmrnahzes the use of a sexual organ and not the use of any other contraptlon rn the sexual act Thrs means that lf a person penetrates the anus of another person uslng a contraptron, that person does not commrt an offence srnce the provtston only apphes to the use of a sexual organ The Btll proposes to remedy thls by rncludrng obJects and sex contraptlons, rn addrtron to sexual organs so that a person who performs a sexual act wlth the ald of a sex contraphon rs also charged wtth the offence The provrsron does not also prohlbtt or deal wrth conduct related to gender ldentrty such as transgender and queer people and nerther does lt prohrblt a person lrom tdentfyrng as a lesbran, gay, brsexual, transgender, and queer, thereby allourng the normahsatron of such sexual onentatlon as well as gender 1n Uganda The Brll proposes vanous offences agalnst persons that ldentfy as a lesbran, gay, brsexual, t ra nsgender, and queer: The provrsron does not prohrbtt the promotlon of same sex sexual acts and has allowed the prolferatron of persons and entltles whose marn role 1s to advocate for and normalse the same sex sexual acts, rncludrng recrurtment, groommg, trantng and advocacy wtth the atm ol equrpprng homosexuals and members of LGBTQ organlzatrons to carry out such actrvrttes whrch are armed at normahsrng rllegal acts The Brll proposes to prohlbtt the promotlo exuallty ln Uganda and proposes tough sanctlons fho The Commrttee notes that the Brll atso lncorporates the findmgs and gr eflect to varr u s decrslons of court relatlng to homosexuahty, tncludrn 3 -w ol Vtctor Mukasa & Another us AttomeA General (Hrgh Court Mlscellaneous Cctuse No 24 of 2006, Kasha Jacquelme, Daud Kato Ktsule and Onzrema Pahence u Rolhng Stone Ltd and Gtles Muhame (Htgh Court Mscellqneous Cctuse No 163 of 2O1O) and Nabagesera & 3 Ors u AttorneA General & Anor (Mscellaneous Cause 33 of 2012 w}:,rcl:, makes vanous findrngs whrch rf not grven effect to, w l affect the fight agalnst homosexuallty and the desecratlon of our cherrshed cultural values, customs and norms by the rntroductlon of new and emergrng sexual onentatlons whlch contravene the above values 5.2.
HumrD Rights issucs tn thc Bill The Commrttee also recerved memoranda from varrous stakeholders who obJected to the Brll on grounds that the Brll contarns provlslons whrch affront the protected nghts and freedoms guaranteed under the Constttutlon of the Repubhc of Uganda The objectrons were ralsed by Dr Adrlan Jjuuko, Dr Kabumba Busrngye, Dr Svlvra Tamale, Mr trtr/as1ke AnthonS, of Chapter 4 and Bukrrwa Marra of a the Women Pro bono Inttlatrve who all opmed that some of the provrsrons of the Brtl contravene vanous prouslons oI thc Constltutlon tncludlng artlcle 27 on the rrght to prrvacy, artrcle 24 and 44 (a) relatrng to non derogable rrght to freedom 'from nhuman and degradtng treatment as protected under artrcle 24 and artlcle 44(a) and artrcle 21 of the Constttutlon on the nght agamst drscnmlnatlon They also opmed that some provtslons of the Brll go beyond the hmrtatlons envrsaged tn artlcle 43 of the Constrtutton and that some other provrslons contravene the prlncrple of legalrt1, prescrtbed rn artlcle 28 (t2) of the Constrtutron It rs the rn posltlon of Dr Adrtan Jluuko, Dr Kabumba Buslngye, Dr Sylv Tamale and Buklrwa Mana of Women Pro bono Initratle that sexual acts between consentlng adults should not be crtmrnahsed The cnmrna these acts, accordrng to them, contravenes provlsrons of the Constrtu bhc of ganda, as *'ell as establshed rnternatlonal and re tlon of th hsatron uman R w 14 w nghts standards, as 1t unfarly hmlts the fundamental rrghts of LGBTQ persons.
Thrs crrmlnallsatron also denres them equal protectlon under the law, owlng to the harsh dlfferentlal treatment they recelve based on thelr sexual onentatlon and the crrmrnahsatron of the same The Commlttee has examrned the above assertrons rn Lght of the provrsrons of the Constrtutlon and Brll and reports as follows, The Constltutron of the Republc of Uganda contalns, ln chapter 4, a B 1 of rtghts whlch guarantees and protects a number of rrghts and freedoms The rrghts recognrsed and protected 1n the Constltutlon are enloyed by all persons rn Uganda The Commrttee ts aware that courts 1n Uganda have determmed that the rtghts and freedoms guaranteed tn the Constrtubon apply to all persons ln Uganda rrespectlve of therr real or percelved sexual onentatron.
Court 1n the case of Vlctor Mukqsa & Another us.

Attorneg General (Htgh Court Mlscellqneous Cause No 24 of 2006) qnd.

tn Kq.shq.

Jqcquellne, Dqvld, Kdto Kisule and.

Onziemq, Pqtlence u. Rolllng Sto'I,e Ltd, qnd.
ciles lttuhame (High Court Mlscellq.neous Cc:use No 163 of 2O1O) found that constltutlonally protected nghts belong to all Ugandans, whatever thelr percelved sexuahty These cases formed the basls for supporters of sexual mlnorlttes to object to the restnctrons rmposed on them under varlous laws, allegmg that such restrtctlons contravene therr lnherent rtghts Supporters of sexual mlnorltles also argue that the ltmltatlons rmposed on the enJoyment of the rlghts of sexual mtnorrtles go beyond what 1s acceptable and demonstrably lustrfiable rn a free and democratrc socletyr or what rs provrded rn thrs Constrtuhon They also that nghts and freedoms guaranteed m the Constrtutlon are not exhaustlve and ln thrs, they refer to artlcle 45 of the Constrtutton whlch provtdes that the rlghts, dutles, declarattons and guarantees relahng to the fundamental and other human rrghts and freedoms specrfically mentloned m the Constltutton are not to be regarded as excludmg others not spectfically mentloned !N- 15 * The Commlttee observes whereas the rrghts and freedoms enshrlned 1n the Constrtutron apply to all persons rn Uganda rrrespectlve of thetr sexual onentatron, these rlghts, especlally the rlghts arhculated by the supporters are not absolute, save for those rrghts recogmsed m artlcle 44 srnce they have to be exerclsed wrthrn the confines of the la\4, as recogmsed rn artlcle 43 of the Constltutlon The Commlttee rs aware that General hmrtatlon on fundamental and other human rlghts and freedoms exlst in the Conshtutlon under artlcle 43 of the Constltutron whrch provrdes that rn the enjoyment of the rrghts and lreedoms prescrrbed m the Constrtutron, no person shall preJudrce the fundamental or other human nghts and freedoms of others or the pubhc lnterest The same provlslon allows hmrtatlons to be lmposed on the enJoJ,,rnent of nghts and freedoms as long as those llmltatrons do not go beyond what rs acceptable and demonstrably lushfiable rn a free and democratlc soclety, or what rs provlded 1n thls Constrtutlon The Commlttee 1s
 aware that the Constttutton of Uganda does not recognrse a rrght to homosexuahty but lnstead, bans and prohrbrts same sex marrtages The argument advanced for recognltlon of same sex relatrons rs marnly grounded under artrcle 45 of the Constltutlon whrch provtdes that the nghts, dutles, declaratlons and guarantees relatmg to the fundamental and other human nghts and freedoms specrhcally mentloned rn thls Chapter shall not be regarded as excludmg others not speclfically mentloned Thrs provrsron of the Constltuhon, accordrng to persons who advocate for nghts and freedoms ol sexual m1norltles, recogntses "other nghts" rncludrng the nghts oI sexual mlnorrhes as artlculated 1n vanous lnternatlonal rnstruments, tncludrng Unrversal Declaratlon of Human Rtghts, 1948 and other human rtghts treatles, whlch contaln provlslons recogntslng the nght to dlscrrmrnatron as core pnnctples of human rlghts qualrty and n- m 't6 w The equahty and non-dlscrlmlnatlon guarantees provlded by lnternatlonal human nghts larv apply to all people regardless of sex, sexual onentatlon and gender rdentrty or "other status' The thrust of the argument rs that under rnternatronal human nghts law, States are requlred to guarantee full rlghts to all persons wlthm ther terrrtory wrthout dlscrrmrnatlon purely on the basrs of sexual orrentatlon and gender ldentty and further, that states have to respect the autonomy and bodrly lntegrlty of persons, and the State ls under obhgatron to refraln from enactrng laws that leopardlze thls nght.
The Commrttee notes that whereas Uganda 1s a slgnatory to a number of lnternatlonal rnstruments that mtght be mterpreted to recognrse sexual m1norlt1es, these do not create legally bmdrng obhgattons on Uganda srnce the Constltutlon, whrch rs the supreme law of Uganda and other enactments such as the Penal Code Act speclfically bar sexual acts bet\^'een sexual mtnorthes.
The Commrttee notes that srnce arhcle 43 of the Constrtutton recognEes that the rlghts prescrrbed m the Constltutlon can be restncted m pubhc mterest, any nghts must be exercrsed w1th1n or accordlng to the exrstlng law The Commrttee ls aware that the human rlghts complance of the restrlctrons rmposed on sexual mrnontles, espectally on the enJoyment of the rtghts and freedoms guaranteed 1n the Constltutron of Uganda, were examtned by Court rn '; Nabagesera & 3 Ors a Attornev Generq.l & Artor (Mlscelloneous Csuse 33 oJ 2O72 where the Htgh Court vyas called to examlne whether the closure of a workshop advocatlng for normaLzatron ol mlnorlty rrghts rn Uganda was an affront to the freedom of assembly, speech and expresston, assocratron and equalrty before the las' The court held that the workshop was rllegal as rt engaged rn the drrect and tndrect promotlon of same sex practrces whrc prohlbrted by the Penal Code Act Court further hetd that the appllcants exerclsed therr nghts of freedom of expressron, assoclatton, and assembly to promote prohlbrted acts that amounted to actron preludrcral to the pubhc lnterest The court also noted that the rnvoked nghts are llmlted under artl 43 ot rn the pubhc rnterest The closure ol the u,orkshop w onstltu N 11 .W o-', to protect natlonal secunty and pubhc order and publlc lnterest Accordrngly, thrs d1d not vrolate therr rlghts and freedoms The decrsron of court found that (a) It rs trlte lau,that any nghts must be exercrsed wlthtn or accordlng to the exrstlng law The exercrse of rrghts may be restncted by law ltself Court noted that domestlc law ls the framework wrthrn whrch human rrghts are en3oyed and rn whrch human rrghts promotlon actlrtles should be conducted (b) Persons enloyrng rlghts have a correspondtng dutv and requtrement to exerclse them rn accordance li'rth the law (c) Where the law prohrbrts homosexual acts and persons knowingly promote those acts, they are actlng contrary to the law Such persons cannot allege that the actlons taken to prevent thelr breach of the law amount to denral of 'equal protectron' of the law because the law abtdrng people were not equally restncted.
(d) It 1s trlte law that the preventlon of promotron of rllegal acts ts clearly acceptable and Justflable rn an1, free and democratlc socletv because rt ls based on the law All democratrc countnes are founded on the rule of law (e) The restrrctron on the exercrse of rlghts based on the need to protect moral values flts well wlthtn the scope of vaLd restnctrons under Artrcle 43 of the Constrtutlon The Commlttee therefore flnds that nghts and freedoms guaranteed tn th Constltutlon can be enloyed by all persons rn Uganda whatever thelr percerve sexuahtlr save that the restnctrons on the enjovment of the rtgh ts of sexual mlnorrtles sron such as artrcle 31, sectlon the exrstence of a legal 18 k B t v -71-- 145 and the proposed Brll are legally permrssrble srnce such restnctlons are lustrfiable, rn pubhc lnterest, as recognrsed m artrcle 43 of the Constltutron 5,3, Homoscxuality as a rcsult of naturc or nurturc The Commlttee was rnlormed that homosexuaht-v has e&sted rn Afrrca srnce tlme lmmemorlal and rs not a recent rntroductron Professor Sylvra Tamale also argued that homosexuahlz can mamfest naturally wlthout any promotron, makng the provrsrons restrlctlng same sex relatlons unreasonable slnce they are not ahve to the naturally occurrlng sexual trarts The Commrttee also recelved uformatron from Chnstlan La'.^ryers, who rnformed the Commlttee that studles proponents of same sex relatronshrps have often argued agaust the cnmlnahslng same sex relatlonshlps based on the reasonlng that the homosexual tendencles occur naturally The lawyers argued that thrs was not entrelv true and drsmlssed the clalms made by the proponents that research rn varlous countrres has proved thts, tncludmg the exlstence ol homosexual tendencles 1n anrmals The Commlttee rnvrted the Uganda Medrcal Assoclatton, an Assoctatton that brrngs together medtcal doctors rn Uganda and the dlaspora to submrt on thls matter, and Uganda Medrcal Assoclatlon lnformed the Commlttee that- W (") Medlcal sclence recognEes the varlety and spectrum of human sexual behavrour Sclence also recognzes that the expressron of human sexual behavtour ls assoclated wrth brologrcal as well as socral and cultural factors Sexual behavrour 1s affected by nature, socrety, rehgrons, cultures, and many other factors.
(b) Studles of human sexuahty rn all races throughout the world and throughout human hlstory have documented the varrety of human sexuahtv, Heterosexualrty, homosexualtty, and other forms of expresslon Many genetrc studles have attempted, though successfully to pmpomt one spectfic homosexual gene tx 1q 41- (c) Studres m sexology have shown that sexual phenomena exlst on a normal drstrrbutron contlnuum llke most human attnbutes e g where most people are rn the mlddle but others may be taller or shorter.
Thus also 1n sexuahtv, there rs a spectrum of sexual behavrours Some people are less fixed rn one form of sexuahty than others.

Thus sexuahty rs a far more flexrble human qualrty than used to be assumed m the past, demonstratmg the blologlcal vanabrhty wrthm the human race (d) Sexual expressron rs a functron of brologv, psychologz, socrologr and anthropolos/, the latter rncludrng cultural and religrous rnfluences.
Thus the factors assoctated wrth homosexuahty or same sex behavrour can be traced to brologrcal, soctal, envlronmental, psychologrcal or a comblnatlon of them, wrth these lnfluenclng each other (e) (0 There are some rare btologlcal cases affectmg the genes that code for unusual expressrons of physrcal phenot,?1c expresslon assoclated wlth the gerutal organs These mclude Kltnefelter's Syndrome (XXY), a random genetrc occurrence when a boy has an extra X chromosome that emerges rn adulthood wlth femtnlne appearance and behavrour Another congenttal condltlon called Ambtguous genltaha exrsts, rn thrs case an rniant's genltaha are not clear whether they are male or female Thrs condltton, recogmzed rn earlv rnfancy, may be corrected by surgery after assessrng whether the genes of the lnfant are male or female Homosexuahty 1s therefore a sexual orrentatlon and sexual attractlon to same-sex persons whtch may be followed by homosexual behavtor toward people of the same sex.
Medlcal sclence ls further explo the factors assocrated and conhnues to do so.
It ls not clear whether 6) "W 20 ( thls dlffenng physlologlcal response exrsts at/from btrth or developed after a homosexual experrence later m hle The conclusron from the current body of sclentrflc evrdence rs that there rs no srngle gene responsrble for homosexualrty and there rs no anatomrcal or physrologrcal data that can firlly explarn lts occurrence Uganda Medrcal Assocratlon therefore concluded that rn every socrety, there 1s a small number of people wlth homosexual tendencles and/or behavrour and that homosexuahty rs not a dlsease Based on the above, the Commrttee 1s of the consrdered optnlon that homosexuahty rs marnly an acqurred and learnt sexual practtce, wlth httle or no rnfluence from nature, save for some rare btologtcal cases where a few people are born wlth cases affectmg the genes that code for unusual expresslons of physrcal phenotyplc expresslon assoclated wlth the genltal organs 6.0.
ANALYSIS OF THE PROVISIONS OF THE BILL Thrs part of the report examlnes the 8111, tts legahty, effect and the mrschref rt lntends to cure 6.1.
Offencc homoscxuelity Clause 2 of the Brll creates the offence of homosexuahty and rt provldes that thrs offence 1s commrtted where person (") penetrates the anus or mouth of another person of the same sex wlth hrs penrs or any other sexual contraptton, (b) uses any obJect or sexual contraptlon to penetrate or stlmulate the (c) sexual organ of a person of the same sex, touches another person wlth the utentron of commlttlng the act homosexuallty, & 6b 21 # (d) holds out as a lesbran, gay, transgender, a queer or any other sexual or gender rdentlty that 1s contrary to the bmary categorres of male and female The Clause proposes a punlshment ol ten years upon convlctlon of the offence of homosexualrty In addrtlon, clause 1 defines the term "homosexual" to mean a person who engages or attempts to engage rn same gender sexual actlvlty whrle "homosexuahtf rs defined to mean same gender or same-sex sexual acts The Commlttee has examrned the provrslons of clause 1 and 2 relatlng to the offence of homosexuallty and rs of the consrdered oprnron that there 1s need to harmontse these provlsrons rn order to create clarrty as to the offence of homosexuallty The Commrttee noted that whereas clause 1 of the B 1, dehnes homosexuahty to mean same gender or same-sex sexual acts, the offence of homosexuahty created 1n clause 2 makes specfic acts performed by persons of the same gender crrmrnal offences In thrs regard the deflnltron of homosexualrty rs broader than the acts prescrlbed ln clause 2 whlch create the offence of homosexualrty Indeed, rn the definrtron of the term homosexualrty, the use of the phrase "sexual act' expands the definltton of homosexuahty to lnclude acts such as (a) physrcal sexual actlvlty that does not necessarrly culmtnate tn rntercourse and may lnclude the touchlng of another's breast, vaglna, penrs or anus, (b) stlmulatlon or penetratron of a vagrna or mouth or anus or any part of the body of any person, however sllght by a sexual organ, the unlawful use of anJ.
obJect or organ person's sexual organ or anus or mouth, by a person (c) o It can be rnferred from the above that to prove homosexualrty as defined rn clause one must prove that the accused person engaged rn- 2 s (") (b) (c) physlcal sexual actlvrty that does not necessarrly culmrnate m lntercourse and may lnclude the touchrng of another's breast, vaglna, penls or anus, stlmulahon or penetratron of a vagrna or mouth or anus or any part of the body of any person, however sllght by a sexual organ, or unlawful use of any oblect or organ by a person on another person's sexual organ or anus or mouth On the other hand, the offence of homosexuahty created rn clause 2 requrres the proof that the accused person- (a) penetrated the anus or mouth of another person of the same sex wlth hrs penls or any other sexual contraptron, (b) used any obJect or sexual contraptlon to penetrate or stlmulate the sexual organ of a person of the same sex, N (c) touched another person wtth the lntentron of commrthng the act of homosexualrty, (d) held hlmself or herself out as a lesbran, gay, transgender, a queer or any other sexual or gender ldentrty that ls contrary to the brnary categorres of male and female The challenge wlth the above provlslons 1s that- (a) whereas rn clause 1 rn provrng homosexuahty, one need not to provc penetratron of the anus or mouth of another person oI the same sex wlth hrs petus or an).
other sexual contraptron, clause 2 creatmg the offence oI homosexuahty specrfically requlres the proof of penetra of the anus or mouth of another person of the same sex wlth hls p or an y other sexual contraptlon, q "W 'llt (b) ln clause 1, mere touchrng of a another person's breast, vagtna, penrs or anus, rrespectlve of the gender of the persons mvolved amounts to homosexuality whrle rn clause 2, the offence of homosexuahty ls commltted where a person penetrates the anus or mouth of another person of the same sex wlth hts pems or any other sexual contraptron, (c) rn clause 1, a person who stlmulates a vagrna or mouth or anus or any part of the body of any person, however shght, by a sexual organ commlts homosexuahty but m the offence of homosexuahty rn clause 2, one must prove erther actual penetrahon or stlmulatron of the sexual organ of a person of the same gender by any oblect or sexual contraptron, (d) Unltke rn clause 2 where a person commlts the offence of homosexuahty by merely holdlng out as a lesbran, gay, transgender, a queer or any other sexual or gender rdentrty that 1s contrary to the brnary categones of male and female, rn the definltron of the offence of homosexuaht) ' that rs nol a requrrement N< 7At- fn" effect of the above conllctmg requlrements between the dehnrtron of homosexualrty rn clause 1 and the olfence of homosexualtty rn clause 2 makes the provlsron vague, thereby contravenlng the pnnclple of legahty prescrlbed 1n arhcle 28 (12) of the Constltutlon It has been found by court that a penal provlslon whrch rs vague as to elements of the offence contravenes arttcle 28 (12) of the Constltutron Courts 1n Uganda have declared provtstons that vague unconstltutronal, rncludrng rr Andrew MuJuni Muend.a qnd other Vs AG (cottsolld.dted constttulrlond.l petitions No.72 of 2OOS qnd No.
3 oJ 2006) where:.IjL Court declared the offence of sedltron unconstrtutronal for rnfnngrng Artrcles 29(1) (a) and 43(2) (c) of the Constrtutron.

Court reasoned that the offence of sedltrous was prescrrbed so vaguely that one may not know the at, wh e exercrslng one's rrght r drtf'cle 29 a) o 24 the Constltutlon and therefore struck lt off Furthermore, rr Centrc for Dornestic Violence Pteoentlon &omp; I ors -yS- AG, Constltutional petition No.
13 oJ2074,, court declared Sectrons 2, 11, 13, and 15 of the Antr-Pornography Act, whrch defined and created the offence of pornography unconstltutronal due to the vague definrtlon of the offence of pornography The Commlttee rs also aware that whereas clause 2 makes provrsron for matters contalned rn sectron 145 (a) and (c) of the Penal Code Act, the Brll does not replace or make provrsron for treatment of the provrsrons of sechon 145 Sectlon 145 oI the Penal Code Act rs reproduced below w a 7 4 5.
ULnqturq.l otfence s Ang person who- (a)has cernal knowledge of ang person qgqinst the order ot nqture; (b) hq,s carndl knowledge ol qn @nimal; or (c) permtts a male person to haae cq,r,r'q,l knowlcdge ol hlm or her a.gqlnst the order ol nqture, commits an olfence and is lla.ble to irnprisonment lot life.'
The proposals rn Brll, coupled wlth contlnuatron of the offence of unnatural offence rn the Penal Code Act, specrfically sectlon 145 (a) and (c) w1ll comphcate the prosecutron of the offence of homosexualrty whrch wrll be prescrrbed rn three provrsrons, tn clause I and 2 of the Brll and sectlon 145 (a) and (c) of the Penal Code Act.
It should be noted that these prouslons prescnbe dlfferent elements that the prosecutron must prove For lnstance, wh e lor the offence of homosexualrty rn clause 2, one must prove the elements prescrrbed ln clause 2 of the B1ll, m the offence of homosexualrty under sectron 145 (a) and (c), one must prove carnal knowledge, belng the actual pe by a male sexual organ netratlon of erson' In the case ol Christophet Mubiru KlsingttL Vs (rgq.nd,a, HCCA No 2015 oj ted that for the offence of unnatural offence to be sustamed, the fg 25 1: prosecutron must prove that a person has had anal sexual act agalnst another person In the same decrsron, court observed that the prosecutlon must prove that there was penetrahon of the anus by a male sexual organ Thrs provrsron usually applted agalnst a male person and 1t 1s rrrelevant whether the vlctlm 1s a \\'oman or man The above sectron specrfically prohrbrts and punlshes the conduct ol a person who has carnal knowledge of any person agalnst the order of nature as well as the conduct of a person who permlts a male person to have carnal knowledge of h1m or her agalnst the order of nature Thls wlll create confuston slnce on one part, m sectlon 145 there must be actual penetratron of the anus by a male sexual organ whrle rn clause 2, the provlslon rs broader and covers penetratlon, shmulatlon and touchtng of a person's sexual organ wrth the anus or mouth of a person of the same gender Furthermore, whlle the Blll m clause 2 prohrbrts the holdlng out of a person as a lesbran, gav, transgender, a queer or any other sexual or gender ldenttty that rs contrary to the blnary categortes of male and female and terms lt as homosexualrt],, the prouslons of sectron 145 (a) and (c) of the Penal Code Act only llmlts the acts of homosexuahty to actual penetratlon of the anus by a person's sexual organ Thrs therefore means that 1n addltlon to the two offences of homosexuahty proposed 1n the 8111, rf the provlslons of sectron 145 (a) and (c) of the penal Code Act are retalned, rt would mean that the law book would have three offences of homosexualrty, each prescrrbrng dfferent elements These offences would be so broad and vaguely deflned that a person would not know how to temper h1s or her conduct so that he or she 1s not caught up b\.the prohrbrhons prescrrbed tn those provlslons c\{?
26 & \1L' RccororDendations In lqht of the aboue, tlle Commtttee recommends thdt- (") (b) (") (d) (e) the definttnn and offence of homosentahtg prescibed rn clauses 1 and 2 of tle Btll should be harmontsed tn order to clearlA prescnbe the elements of tlLe offence under those proursrons The offences created tn the Brll should be harmontsed.

urth secton 145 (a) and (c) of the Penal Code Act to ensure that onlA one offence remanns on the lau book prescnbtng the offence of homosexualltA.
The offence of homosexuqliA shotdd equallg applg to a person who allous anoth.er person to penetrate hts or her anus or mouth unth a sexual organ stnce cuffentlA, the proposal tn the B l onlg puntshes a person u..,ho penetrates and does not extend to one u)ho allows the penetratton In ord.er to enhdnce clantA, all the u)ords used tn the Btll thqt are tncapable of exact dertruton should be defined", The offence of homosennlig and penalta prescnbed m the Btll should be harmontsed wtth other sental offetTces, tnclud.tng the offence of rape and defilement as prescnbed tn the Penal Code Act tn order to erusure that the Bil ls tlot used to water doun the pro?
]"stons of the Penal Code Act 6.2.
Aggravated Homoscxuality Clause 3 of the B 1 proposes to create the offence of aggravated homosexuahty commrtted where - (a) (b) (c) a person agalnst whom the offence rs elghteen years, commltted ts the age of the offender rs a person hvrng wrth HIV, the offender 1s a parent or guardran of the person agamst whom the offence rs commltted .a (d) the oflender rs a person havmg authontv or control over the person (e) (0 (e) agarnst whom the offence 1s commltted, the vrctrm of the oilence rs a person wlth drsabrlrty, the offender rs a serral offender, or the offender apphes, admrnrsters or causes to be used by any man or woman any drug, matter or thtng wrth tntent to stupefy or overpower hrm or her so as to enable any person to have unlawful carnal connectron wrth any person of the same sex The provrsron lmposes a sentence of 10 vears rmprtsonment agalnst a person who rs convrcted of an offence of aggravated homosexuahty and further requlres a person charged wlth the oflence of aggravated homosexualtty to undergo a medrcal examlnatlon to ascertaln hrs or her HIV status The Commlttee has examrned the offence of aggravated homosexualrty and ts of the consrdered oplnlon that whereas the proposal ls noble, there rs need to remedy the followrng matters rn order to ensure the effectrveness of the rovtsion The lssues are- (a) the offence of aggravated homosexuahty prescnbes the same penalty as the oflence of srmple homosexuallty created tn clause 2.
The essence of creattng an aggravated offence rs to tmpose a more severe penalty agarnst a person who commlts the offence Slnce tn the clrcumstances of thrs offence, the aggravatmg offence and the s1mple offence carry the same penalty The aggravahng offence becomes redundant srnce lt tntroduces nothmg new to the provtstons of B111, (b) The provrsron creates an mcomplete offence srnce tt proposes to create an lndependent offence of aggravated homosexuahty wlthout prescrlbe the elements of thrs offence For lnstance, the Btll proposes that a person commlts the offence of aggravated homos here tv 0.9 ) =+ \i .1 person agalnst whom the offence 1s commltted ts below the age of elghteen years Thls 1s an mcomplete offence srnce rt does not prescrrbe what elements must be proved to sustarn a charge of the aggravated homosexuallty owlng to the lack of elements for conduct that would fall ln the prohlbltlon ol aggravated homosexualrt], The provlslon therefore contravenes the pnncrple of tegahty prescrrbed rn artrcle 28 (12) of the Constltutlon whrch requres that except for contempt of court, no person shall be convtcted of a cnmrnal oflence unless the offence rs defined and the penalty for 1t prescrrbed by law The Commrttee notes that ln all proustons creatrng an aggravattng offence, the provlston makes the aggravatng clrcumstances a matter of sentenclng by clearly prescrrbrng the elements of the offence For lnstance, sectron 129 (3) of the Penal Code Act creates the offence oI aggravated defilement m the lollowtng terms uAny person who performs a sexual act wlth another person who rs belorv the age of elghteen years 1n any of the crcumstances specrfied rn subsectlon (4) commlts a felony called aggravated defilement and 1s, on convrctlon by the Hrgh Court, hable to suffer death."
Thts clearly prescrrbes the elements of the offence of aggravated defilement and requrres court to take rnto account the specral clrcumstances under whrch the offence ras commltted 1n sentencrng the offender and flndtng h1m gutlty of aggravated defllement Thrs rs mrssrng from the provlstons of clause 3 of the Brll Rccomlucndatiorrs In hght of the above, the Commtttee recommends that- (a) There B need to enhance the puntshment proposed.
tn clause 3 for the offence of aggraudted homosexualttll and harmontse the pena Itres prescnbed.

tn clause 3 wih those ot clause 4 (2) of tfte Bil as well as sJ 29 .w those prescnbed for srmiar conduct prohtbtted under the Penal Code AcL especlallA the offence of nlpe and Dertbment, (b) Clearlg proutde the elements of the offence of aggrauated homosentaltg and mqke tle aggra,attng ctra)mstarlces releuant dunng sentenctng as s alwags the case u.ttth such offences 6.3.
Protcction, assistancc alld paymcrt of compensrtioD to vlctims of homoscxu.rlity The Btll proposes rn clause 5 of the Brll to lntroduce provlslons relatmg to the protectlon, asslstance and payment of compensatlon to vrctrms of homosexuahtv The provrsron requlres that a vrctlm of homosexualrty- (") V (") shall not be penahsed for any crrme commltted as a dlrect result of hrs or her rnvolvement ln homosexuahty; shall be assrsted to enable hrs or her vrews and concerns to be presented and consrdered at the approprlate stages of the crlmlnal proceedrngs, shall be awarded compensatton pard by a person convlcted of an offence of homosexuahty or aggravated homosexualtty The B1l1 deflnes a vrctlm of the offence as a person who rs rnvolved rn homosexual actlvltles agarnst hts or her wrll The Commrttee observes that whereas the provrslon ls noble and should be supported, the followrng matters should be reconsrdered tn order to make the provlslon effectlve- (a) the provrsron does not provrde hou' the vrcttm of the of{ence wll he rdentfied consrderrng that consent rs rrrelevant rn the offence of homosexuahty Essentrally, a1l the partres rnvolved rn the commrssro of acts whlch are prohlbtted under the offence of homosexuahty a dB 30 t0( prosecuted ior the offence of homosexualrty, leavrng the provrslon redundant, (b) the provlslon rs Lkely to be abused by vlctrms or relatlves of vlctlms to harm and ln some cases krll or rnjure persons who are suspected for commlttlng homosexuahty slnce the provrsron grants rmmuntty to vlctlms over all actons done agalnst the suspected homosexual person Thrs provlslon rs rnconslstent wrth the guarantees of tnnocence under artlcle 28 (S) (a) slnce rt allows the vrctim to punrsh the suspected homosexual wlthout first havlng the person tfled tn courts of law or have the matter lnvesttgated Thts provrsron has potentral to lncrease lncldents of mob Justrce agalnst suspected homosexuals and mrght be used by rndrvtduals to bantsh suspected homosexuals or take ther property merely because they are suspected of the olfence of homosexuahty RECOMMENDATIONS In hght of the above, the Commrttee recommends that k, (a) provision should be ntade to cleqrlg proutde Ior the id,entlfi.catlon ol vlctlms ol q.n qflence under the Btll through clqrifging the deJinitlon of who qmounts to q t lctifi.
(b) Sub clduse (7) oJ the Bill should.

be d.etcted.

stnce it hrrs pote^tiq.l to be abused bg vlcttms to commlt crimes, agqlflst accused.

persons before the q,cts conpl@ined, of q.re inuestlgqted.

bg the police qnd.

the qccused.

person prosecuted..

It uill encoutqge mob fustice and.

lt tdkes q,wqg the q,ccused.

person's presumptlon ol iflnocence prescribed, ln q.rticle 2A (3) (a) of the Co,{,stitution,.

31 6.B v !l'" 6.4.
PromotioD of hoEoscxuelity Clause 14 of the Br11 proposes to punlsh the promotron of homosexuahty and rt proposes that a person commlts the offence where that person (a) (b) (c) (d) (e) partrcrpates rn productron, procunng, marketlng, broadcashng, dlssemlnatlng, pubhshlng of pornographrc materrals for purposes of promotlng homosexuallty, funds or sponsors homosexuahty or other related actrvltles, offers premrses and other related |txed or movable assets for purposes of homosexuahty or promotmg homosexuahty, uses electronlc devrces whrch lnclude tnternet, films, mobtle phones for purposes of homosexuahty or promotrng homosexuahtv, or who acts as an accompllce or attempts to promote or 1n any way abets homosexuahty and related practrces k The Commrttee notes that one of challenges faced currently ln the fight agalnst homosexualrtv rs groomrng and promotron of homosexualrty, especlally m schools Groomrng rs when a person bu ds a relattonshrp wrth a ch d, young person or an adult who 1s at flsk so they can abuse them and manlpulate them mto dolng unlawful sexual acts Groomng can take place on hne or rn person and rs usually done by persons who have ren, lncludrng teachers and other care gtvers rn schools authorlty over c On the other hand, there are currently ln Uganda drrect and rndlrect means of promotlng homosexuahty rn schools and other places These promotron measures are usually drsgursed and are drfficult to detect but are desrgned to recrult people, especrally chrldren and the youth lnto homosexualrty These endeavours are undertaken, usualty, by some rndtvrduals and/or non- governmental organlsatlons u,ho drsgurse thetr actrvrtles as legrtrmate advocacy work done by c1v1l socrety organrsattons Government has ln recent tlmes bann pped the operahon of certaln clv socrety orga s and has n 32 certarn meetrngs that were rntended to promote and normahse homosexuahty and conduct repugnant to publc pohcy rn Uganda The provrslons on promotron of homosexuahty are therefore welcome srnce they w l stop the on- gorng promotlon and recrultment of rndrvrduals rnto acts of homosexualrty RccorEEGndations The Commdtee recommends that The proutstons of clause 14 should stand palt of the Btll albelt uth amendment to ban qctwites of ctvrl soctetg orgqnlsatlons that qre mtended to normql$e acts clnd conduct that normahses conduct that B banned or unlquful n Ilgandq The proutston should also cnmrnahse groomtng of persons to engage in homosexualttA and enhance penaltles agalnst corporate bodes to ensure that the offence of promotlon commttted bU legal enties rc adequatelg purushed The prowsron should be udened to cqter for all the methods through tLthrch homosentahtg and all fis mqntfestaton are promoted, rncludtng Ln academtc tnstttutrcns ln order to protect the chrldren and other utlnerable members of socrctA from th.e wce 7.O, EMERGING MATTERS Durmg consultatlon undertaken bv the Commrttee, a number of new matters where brought to the attentron of the Commlttee.
These new matters whlch are currently not provrded for 1n the Brll have been constdered by the Commrttee rn accordance wrth Rule 129 of the Rules of Procedure of Parhament and reports as follows.

7,1.
PunishEctlts for childrcn offcndcrs The Mmrster of Gender, rn her submrsston to the Commlttee, potnted out that the Brll makes no prousron lor sentenclng of ch dren olfenders and lmposes srmrlar punrshments for all persons rn Uganda, rncludrng chtld ren e N*:,\- t, ffi i/- & Mnrster noted that sectlon 94 (1) of the Chrldren Act Cap 59 Lmrts the penaltles that can be rmposed on a ch1ld to three years for capltal offences and she sought that thrs should be reflected rn the B11l The Commlttee agrees wrth the submlssron of the Mmlster to ensure clanty and harmonrse the B1l1 wlth the prouslons of the Chrldren Act relatlng to sentencrng Recommendrtions Th.e Commtttee recommends that dlfferent penaltes for chddren offenders should be ntroduced m tle Bil 7.2.
Criminalisilg the rppcarrlcc of r pcrson Dr Jjuuko polnted out that the B l has potentlal to crrmtnahse LGBTQ+ people u'ho have not commltted any offence but merely based on the appearance of the accused person He noted that the maJorlt_v of arrests of LGBTQ+ persons under the provlsrons of thrs law wrll contrnue to be premtsed on the appearance of the suspects, wrth persons berng depnved of thelr hbertl, only on the ground that they 'look gay', a phenomenon that has been well-documented durrng the enforcement of the Penal Code Act He polnted out the declded case ol Vlctor Mukq.sq.
& Another !s.
Attofiieg Generql (High Couxl Mlscellqneous Cquse No 24 of 2006) where the plamhff rn the case was arrested by pohce based on appearance and wlthout havtng commrtted an offence and taken to poltce to determlne her "sexualrtrl' w The Commlttee was also lnformed by Uganda Medrcal Assocratron that there are some rare brologrcal cases affectlng the genes that code for unusual expressrons of physrcal phenotyplc expresslon assoclated wlth the genltal organs These nclude Khnefelter's Syndrome ()(xY), a random genehc occurrence u,hen a boy has an extra X chromosome that emerges rn adulthood wlth femlnrne appearance and behavrour Another congenrtal condrtron call Ambrguous genltaha exrsts, rn thls case an lnfant's genltalla are not clear wherher lhey are male or female Thrs lnfancy, rt1on, recognl zed e 0ov w may be corrected by surgery after assesslng whether the genes of the lnfant are male or female Uganda Medrcal Assoclatlon proposes that the law should cater for such people rncludrng persons wlth genetlc abnormahtres and rnter sex persons who have both male and female sexual organs The Commlttee rs also aware that court has already pronounced ltself on thrs matter rn the case of Ko,shq.
Jacquelifte Vs Rolling Stone Lirnited & @rlother, Misc.
cause 163 o;f 2O1O where court held that "the scope of S 145 of the Penal Code Act 1s narrower than galnsm generally That one has to commlt an act under S 145 to be regarded as a crrmrnal" Thrs decrsron means that belng or appeanng as a LGBTQ+ person rs not rn rtself an offence untrl a person commlts any of the prohrbrted acts under the law Thts means that a person cannot be crrmrnalzed but the conduct of the person, ti contrary to the law, should be cnmrnahzed and punrshed The Commrttee has examrned the above and agrees that there rs need for the law to dlstmgursh betu,een acts that constltute an offence whrch should be punrshed and the person, r,r'ho should only be punrshed rf hrs or her conduct breaches a legal provrsron The Commrttee 1s aware that clause 2 (1) (d) of the Br11 proposes to declare as acts of homosexuallty a person who holds out as a lesbtan, gay, transgender, a queer or any other sexual or gender tdentrty that ls contrary to the b1nary categorles of male and female Thrs provlsron has the effect of cnmmahslng the persons who tdentrfy as lesbran, gay, transge queer or any other sexual or gender ldentlty that rs contrary to the categones of male and female wrthout such persons havlng commltted an offence under the laws of Uganda The DPP also cautloned the Commlttee about clause 2 (1) {d) whlch seeks to punlsh a person based on appearance and reasoned that 1f a pcrson holds out as a thlef, he cannot be charg ed o{ theft unless there 1s clear evldence that prove that he or she has erther stolen or attempted to steal anythrng nd 35 % # Recomme11drtions The Commrttee agrees wrth the above assertrons recommends the lollowrng (q) T'h.ere should be a requrement tn the lau obhgatlng a person charged tufih an offence of homosexuqlttA to submtt eutdence from a medrcal pracht@ner appotnted bg the Medrcal and Dentql Prachtloners Counctl, proung that tlrc accused person Luas, at tlp trme of the commtss@n of the offence, suffenng genetrc abnormahtes uhrch mtght haue contnbuted.
to the acts that constttute the offence of homosexuahtg Thts w l help 07 mttlgatlng the puntshment that meht be tmposed on a person (b) Clause 2 (1) (d) of the Bil and all prowstons that cnmlnalse a person uho has not commttted an ofJence based on thetr clppearance or phgsrcal charactenstrcs should be deleted (c) The provlslon should be made tn the Btll on rntersex people and those persons bont unth amblguous gentaha to recognse thetr dtffi.cultrcs (d) For clantA, the tenn "gend.er" and "sex" should be defi.ned tn the Brll The Commlttee recommends that Parhament constders and approves thrs report and that the Antr Homosexuahty Brll,2023 be passed rnto law subject to the followrng amendments.
Rt.

Hon.

Spcakcr and Hotl Mcmbers, I beg to rcport.

& \ I d9 36 SIGNATURES OF MEMBERS ENDORSING THE REPORT OF THE COMMITTEE ON LECAL AND PARLIAMENTARY AF'FAIRS ON THE ANTI - HOMOSEXUALITY B[LL, 2023 o NAIIE CONSTITUENCY PARTT SIGNATI'RE Hon Rwakoo.lo Roblna Grrreme Gomba West County Hon Mutembul Yusuf Bunvole East Hon Okfor Bosco Usuk County Hon Nkwasrrbwe Zlnkuratlre Henry Ruhaama Countv Hon Odor Benard Youth Eastern Hon.
Odol Ovr,velowo Fox West Budma North East Hon Oseku Rrchard Orrebo Hon Baka Stephen Mugabr Hon Cherukut Emma Rose Krbale County Bukooh County North DWR Iiween 10 Hon.

KaJwengye Twrnomugrsha Wrlson Nyabushozr County 11 Hon Okra Joanne Anrku DWR Madr Okollo 12 Hon Obrgah Rose DWR Terego 13 Hon Achayo Lodou Ngora County 14 Hon Kasaua Stephen Burahya County 15 Hon Terra John Bugabula North Countv 16 Hon Srlwanv Solomon Bukhooh Qqntral NRM NRM NRM NR I\,{ NRM NRM NRM NRM NRM NRM NRM NRM NRM NRM NRM t7 Hon.
Kwzera Paul Krsoro Munlcrpalrty NRM,.

1A Hon Wenkhe Chnstopher Bubulo West NRM q 5 I (/\ R 5 d l9 Hon Malende Shamrm DWR Kampala 20 Hon Lubega Ssegona Medard Brrsiro East 21 Hon Ssekltoleko Robert Bamunamka County NUP NUP NUP ).)
Hon Ssemulu lbrahrm Krra Munlclpahty FDC 23 Hon Adeke Ann EbaJu DWR Sorotl FDC 24 Hon Lt Mugrra Gen .Iames I-IPDF ( ) V 25 Hon Asuman Basahrwa Bugrrl Munlclpahty JEEMA 26 Hon Alum Santa Sandra DWR Oyam Ogwang UPC & 27 Hon Shartsl Musherure Nayebare Kutesa Mawogola North County INDEP 2a Hon Abdu Katuntu Bugwerr county INDEP (-- 29 Hon Acrobert Krza Moses Bughendera County INDEP 30 Hon.
Nlwagaba Wrlfred Ndorwa Countv INDEP * PROPOSED AMENDMENTS TO TIIE ANTI.HOMOSEXUALITY B[LL,2023 CLAUSE I : INTERPRETATION Clause 1 rs amended- (a) by deletrng the definrhon ofthe word "authorrty", (b) by deletrng the definlhon ofthe word "court", (c) by deletmg the definrtron ofthe word "felony", (d) by deletrng the definrtron ofthe word "mrsdemeanour", (e) by substrtutmg for the deflmtron of the word, "homosexual", the followrng- "homosexual" means homosexuality;" a person who engages rn an act of (0 by substltutmg for the definltlon of the word "homosexualrty", the followrng- "homosexualrty" means the performance of a sexual act by a on another person ofthe same gender," (g) by substituting for the definltlon of the phrase "sexual act" , rhe followrng- "sexual act" means the strmulatron or penetration, however (a) ofa person's anus or mouth by a sexual organ of another person of the same gender, 1lP.pe 0B (b) of a person's anus, sexual organ or mouth by a sex contraptron, by a person ofthe same gender; or (c) of a person's anus or sexual organ by any part of the body of a person of the same gender," (h) m the definltlon ofthe term "sexual organ", by deleting the words "or any artrficral sexual contraption,", 0) by deletmg the defirutlon ofthe word "touching"; 0) by substrtutmg for the deflnitron of the word "vrctrm", the followrng- "vrctrm ofthe offence" means - (a) a ch d agamst whom the offence of aggravated homosexualrty has been commrtted, (b) a person sufferrng liom mental lness or any other form of avated drsabrlrty against whom the offence of homosexuality has been commltted, or (c) any other person homosexuahty or commrtted- agamst whom the offence of aggravated homosexualrty was 0) by means of threats, force, fear of bodrly harm, duress, undue rnfluence, through mlsrepresentatlon as to the nature of act or rntrmrdation of any kmd, or (il) whrle unconscrous or ln an altered state conscrousness due to the mfluence of medrcrne, drugs, w 2lPaqr.
o) & substance that rmparred hrs or her ;udgment;"; (k) by rnserting the followrng defimtron, appropiately- "advanced age" means seventy five years and above;" "computer" means an electronrc, magnetrc, optlcal, elecfiochemical or other data processrng device or a group of such rnterconnected or related devrces, performrng logrcal, arithmetic or storage functrons; and includes any data storage facrlrty or communlcahons facrltty drrectly related to or operatrng m conJunctlon wrth such a devrce or group ofsuch rnterconnected or related devrces, "chtld care rnstrtuhon" mcludes an orphanage, chrldren's home, open Shelter, an rnstrtuhon of leamrng or any resrdentral chrldcare mstltution, whether hcensed or unhcensed, estabhshed for purposes of provtdrng care and protectron to chrldren who need such sewices " "female person" means a person bom wrth a female sexual organ; "Impnsonment for lfe" means rmprrsonment for the na person wlthout the possrbrhff ofbemg released."
hfe of a w "mformatron system servrces" includes a provlsron of connecflons, operatlon faclhties, for rnformatron systems, the provrston of access to tnformation systems, the transmlsslon or routlng of data messages between or among pomts specified by a user and the processmg and storage of data, at the drvrdual request of the recrprent of th servlce "mtersex" means a person who s bom wrth both male and sexual organs or ls bom wrth ambrguous 3lP 0$ ,w "gender" means the brologrcal state of a person as erther male or female and m the case ofan intersex person, means the status adopted by the lntersex person as bemg dommant etther naturally or through medrcal transrflon but does not mclude sexual orientatron, "male person" means a person born with a male sexual organ, "organrsatron" means a legally constttuted non-govemmental orgamsatron reglstered under the Non-Governmental Organrsatlons Act and mcludes a pnvate voluntary groupmg of mdtvtduals or assocntlons established to provrde voluntary servrces to the communlty or any part, but not for profit or commercial purposes; "sexual orrentatron" means a person's rdentrty rn relatron to the gender to whlch the person rs sexually athacted to, "sex" means gender, # "sex contraptron" means a devrce or obJect used to strmulate a sexual organ or srmulate sexual mtercourse between persons of the same gender,", "person m authonty" means a person who is charged wrth the duty or responsrbrhty for the health, welfare or supervision ofa person; "termrnal rllness" means a drsease wrthout screntlfic cure, "vulnerable person" means a person who rs m need of protectron because of age, gender, rllness, physrcal or mental dtsabiltty, socral or personal status, or other status, including a refugee, an mtemally drsplaced person, a stateless pelson, an asylum of gender-based vrolence, an seeker, a vrctim elderly person terate person l Justification 4lPage Oq .
to remoye tenns ond words that are redufidant since tlrcy are not used in the B l .

the substttufion ofthe def.nition ofthe word "homosacuahty" sfor clanry.
o The amendments proposed to the tenn "sexual act" s for clarity and to hatnoruse the definrnon with the ofence ofhomosexuality as proposed in clause 2 of the Bill o The deletion of the words "or any anifcial sacual contraption" lrom the definition of a xnnl organ is preveflt abuse of the protision by ettending the defnfiron ofa sexual organ to include an arfifaal sexual contraption.

.
.

Tlrc amendment of the temt "victim" is to enlmnce identlfcation ofl,ictins of the ofence of hontosextnlity and to include a child, persons sffiring with mental llness as well as other persons agamst whom a sexual act perfomts who are forced to perform sexual acts that constitute an ofence .

To deJine the tenn hfe mrynsonment.

.
To clearly defrne worcls and phrases that are used ,n the Bil which are ambiguous and capable of nubrple understanding CT,AI]SE 2: THF, OFFEN OF HOMOSEXIJAI,TTY For clause 2, there is subsfltuted the followrng- "2 Offcncc of homoscxuality # (1) A person commlts the offence of homosexuahty f the person perfolms a sexual act on another person ofthe same gender or allows a person ofthe same gender to perform a sexual act on hrm or her (2) A person who commits the offence of homosexuahty rs Lable, on convrctron, to lmpnsonment for hfe (3) A person who attempts to perform a sexual act m c cumstances referred to rn subsectlon (1), commts an offence and ts Lable, on convlctlon, to rmprrsonment for a penod seven years os 5lPage (4) Notwlthstandmg subsectron (2), a person charged wrth an offence under thm sectron may, m mitrgatlon of sentence, submtt evidence from a medrcal practrtroner appomted by the Medtcal and Dental Practrtroners Councrl, provrng that the accused person was, at the ume of the cofilmtsslon of the offence, sufferlng genehc abnormalrtres whrch might have contnbuted to the acts that constltute the offence of homosexuality (5) For purposes ofsubsechon (3), a person shall be deemed to attempt to commit an offence when the person, mtendmg to commrt an offence, begms to put hs or her mtentron rnto executron by means adapted to rts fulfilment, and marufests hrs or her rntentron by some overt act, but does not fulfil hls or her mtentron to such an extent as to commlt the offence.
Justification To remoye a cor{lict between the defrutnn of the words "homosexuahty" ond "sexuol act" in clause I and the prescription ofthe ofence of "homosexnhty" m clause 2 of the B l smce thet each prescribed dffirent elements, nrukmg the ffince of homosexuohty vague, therebl contlawning the principle of legalq, prescribed m artrcle 28 (12) ofthe Constinrtion.
To limit the ffince of lrcmosetuahty to the penetlation, however slight of a person's anus, by another person's sennl organ, ofa person's anus, sexuol orgon or nrouth b1 a senral organ of another person of tlte same gender; or ofa person's anus, sexnl organ or moutlt b1t an object or sex contrapfion, by a person of the same gender, As guded by Court in the case of Kasha lacqueline, Dayid Kato Ktsule and Onzema Patience t Rollmg Stone Ltd and Giles Muhame (High Cou Mscellaneous Cause No 163 of 2010), to hmrt the ffince of homosexuality to the actlnl perfoftnonce of a sexual act between persons As required m sectnfl j7 of tlrc Interpretation Act, to presffibe tlle noimum penalty that can be unposed by court tn o to recognix and mam n cou d iscret i ot t in sentenc ing, 6lPa:,-e sg To e*pand the protixon to mchule an attempt to commt the ofence of homosexuality To move prowstons relatitlg to sexual orientatiotl to clause 14 on promotron ofthe ofence of hornoserual ity.
To increase the penal4t for the ofence, in the cqse of homosexuality, from ten ltears as proposed tn tlrc B l to 20 yars afid for the attempts, front 2 1,ears to 7 years in tandem with sentences mryosed for shnilar sexual ofences The proposal to allow a person charged wth an ofmce uncler the sectnn to mitigate the sentence b)' adducing e datce of genenc disorders b to recogn$e etidence from Uganda Medical Association whtch explauted tltat a ynqll number ofpeople may hate homoserual tendencies because of abnomnlities in thetr genes or b i o logical dso rde rs.
To delete provisions that cnmmalises a person wlto has not commitled alt ofence ofhonosexuahty CLAUSE 3: AGGRAVATED IIOMOSEXUALITY For clause 3, there ts substituted the followrng- "3 Aggravated homosexuahty (1) A person who commlts the offence of homosexualrty m any of the crrcumstances specfied m subsectron (2) commrts the offence of aggravated homosexualrty and ts hable, on convtchon to suffer death.
The crcumstances referred to in subsectron (1) are where- (2) (a) the person agamst whom the offence ts commrtted rs a (b) the oflender is a parent, guardran or relatrve of the agamst whom the offence ls commrtted; (c) the person agarnst whom the offence ls commrtted co a termmal lness as a result ofthe sexual act; (d) the offender rs a senal offender; (e) the offender is a person m authorrty over the person aganst ch d, pers nffacts ,)ffi TlPage whom the offlence rs comm I -W (0 the person agarnst whom the offence rs committed ls a person with disabrlrty or suffers a drsab rty as a result of the sexual act; (g) the person agarnst whom the offence s commrtted 1s a person wrth mental rllness or suffers a mental lness as a result of the sexual act, (h) the person agamst whom the offence is committed rs of advanced age, (l) the offence was commrtted agarnst a person by means of threats, force, fear of bodrly harm, duress, undue rnfluence, through mrsrepresentatron as to the nature of the act or intlmldatlon of any kmd; 0) the person agarnst whom the ofience rs commrtted was at the trlne the offence was commrtted, unconsclous or ln an altered state of conscrousness due to the rnfluence of medrcrne, drugs, alcohol or any other substance that tmparred hs or her ludgment (3) A person who attempts to perfom a sexual act m cfcumstances refened to m subsectron (1), commlts an offence and rs liable, on convictlon, to rmprrsonment for a perrod not exceedrng fourteen years (4) A person charged wlth an offence under thn sectton may, in mltrgatron of sentence, submrt evrdence ftom a medrcal practrtroner appornted by the Medrcal and Dental Practitioners Counc , provmg that the accused person was, at the time of the commrssron of the offence, suffenng genetlc abnormalrtres whrch mrght hav contflbuted to the acts that constttute the offence ofhomosexualrty (5) For purposes of subsectron (4), a person shall be deemed to attempt to commrt an offence when the person, rntendmg to commrt an offence, begins to put hls or her mtentron mto execution by means adap ted to lts fulfilment, and manrfests his rntentron by so 8lrare 'l -W o'9 ( overt act, but does not fulfll hrs or her rntentron to such an extent as to commit the offence."
Justification To harmonise tlrc punishnent Jbr aggravated homosenrulity, with the punislunent prescribed for sinilar ofences wtder the Penal Code; To hamnnise the penalty preslibed in this clause with seaion 129 of the Penal Code Aa relating to deflenent To harmonise the purushment for the ffince of homosexuahty and aggravated homosextality; To erpand the protision to urclude other matters that aggr7yate the ffince of ltonosexualitl,; To expand the provision to mchtde other categories of infeaion and iflcuroble drseases that might anse Jlom the sexual act.
The proposal lo allow a person charged wth an ofence under the section to mitigate tlrc sentence b)) adducing ewdence of gmetic disorders s to recognise ewdence from Uganda Mefucal Assoaation which explamed tlnt a snall xumber ofpeople rnay hate hontosexnl tendencies because of abnomrulities in tlteir genes or biological dsorders T Delete clause 4 Justification The provisions ofclause 4 have been inserted n clauses 2 and 3 of the Bill The Bill is amended by mserting rmmedrately after clause 4, the followmg new clause- "Punishmcnt for child 9lr'aqe 0,) scxuality & A chrld who rs convrcted of an offence under sectron 2 or 3 of thrs Act shall, rnstead of the pumshments presotbed under the relevant sectlon, be hable, on convlcflon, to rmprrsonment for a period not exceedrng three years Justificatiou To hmtt the punishnent that can be hnposed on a ch d hontosexual to three years as rcqutred m seaion 94 (1) (g) ofthe Chldren Act Cop 120.
CI,AUSE 5: PROTECTION, ASSISTANCE ANT) PA\'MENT OF FH CO Clause 5 ofthe Bill n amended by- (a) deleting sub clause (1), (b) subshtutlng for sub clause (2), the followrng- "(2) A person rnvolved rn the mveshgatron, prosecutron or tnal of oflences under thm Act shall asstst the vrctrm ofthe offence present hrs or her vrews and concerns at the appropnate stages of the crrmmal proceedmgs Justification # Sub clause (1) r deleted smce it hqs potential to be obused by vichrus to commt crimes, agahrt accused persons before the acts conplained of ale ifiyestryated the police and the accused person prosecuted It wll encourage nob justice and it takes away the acarsed presumpfion of irutocence prescibed m aticle 28 (3) (a) of the Constitufion For clanty and better draftng E FH For clause 6, there bshtuted the following- 10 lPd Se -w 09 "Consent to sexual act ls no defence The consent of a person to commit a sexual act shall not constrtute a defence to a charge under th1s Act " Justification To expand the protisron to cleclare, as irreletant, the conxnt of any person to the perfonnance of a sexrnl art that cofistttutes an ofence under tfus Aa ratlrcr than litniting tlrc protttsrons to vtctuns ofofences as proposed wtder the Bil.
In clause 7, delete sub clauses (1) and (2) Justification Clause 7 (1) and (2) are redundant since clouse 7 (1) u already a practtce of court while 7 (2) is prowded for under article 28 (2) of the Consrtution wltich allows a court or tribunal to exrlude the press or the publrc from all or any proceedings before it, for reasons ofmorality, public order or nafional seatrity, as may be in a free and democratic soaety.
The Br11 rs amended by msertmg immedrately before clause 8, the followrng- IMMED "Child grooming A person who- (a) recruts, transports, transfers, harbours or recelves a ch d for purpose of engaglng the chrld m homosexuahty or any other conduct prohrbited under thrs Act, (b) drsplays, drstrrbutes or supphes, to a ch d, onstratmg, deplcttng or rllustratrng a sexual any maten act n oa, persons of the same gender or any other conduct that $ prohlblted under thrs Act, (c) shows or ava s a chrld a prcture, vrdeo or film showmg, deplctlng or rllustratkrg a sexual act between persons ofthe same gender or any other conduct that N prohlbrted under thrs Act, or (d) rn the presence ofa child, performs a sexual act wrth a person ofthe same gender or causes another person to engage m a sexual act wrth a person ofthe same gender, commlts an offence and rs liable, on convrchon to rmprrsonment for a perrod not exceedrng ten years (2) The consent of a chrld or that of the ch d's parent, guardian, person ln authonty or any other person wrth parental responsrb lty over the ch d to the acts prescnbed rn subsectron (1) shall not be a defence to a charge under thls Act."
trustification To prohfirt acts that expose children to acts ofhomosennlity, Jffi G SEX Delete clause 8 Justification The provision is redwtdant since t r provided for urtder section 19 of the Penal Code Act and tlrc conduct intended to be cared can be dealt with under clause 14 on promotrcn The protisiort uses words suclt as "acts of homosexuality" which since they are not deJified, thereby makmg the prowsnn contrary prescnbed m anicle 28 112) ofthe Cotsnrution of legah are ambtguous to the prifluple "-w r .s 00 CLAUSE 9: CONSPIRACY TO ENGAGE IN IIOMOSEXUALITY Delete clause 9 Justification Tlrc mtschref intended to be atred by the clause can be dealt with under clause 14 CLAUSE 10: PROCIIRING H MOSEXUALITY BY THREAT Delete clause 10 Iustification Consequentnl anrcndmefit aixng frun the amendment of clause 3 of the B l relating to the ofence of aggratated homosextnlty l,herein, the sub clauses (1) and (2) ofclause I0 were ntserted m clause 3.
Clause 10 conJhas with secnon 123 relathtg to the ofence ofrape and 129 relating to DeJilement by prescributg lesser sentatces tlnn those prescnbed under tlrc above prowsions, ffictmg the prowstons of the abole acts To remove a rcdundant sub clause 10 (2), which proposes to recogn$e a practice of coutt re qu tffi g coryoborat nfi ( o E HOMOSEXUALITY Delete clause 1 1 Justification Clause ll is redundant 812 Clause 12 of Bill n amended- 13 W t$ (a) by renumberrng the provrsrons as sub clause (1) and (2); (b) m sub clause (a), by rnsertrng the words "fac ltatmg the commrssron of the offence of' rmmedrately after the word "purposes", (c) by substrtutrng for sub clause (b), the followtng- "The owner, occupler or manager of premtses who knowrngly allows the prem$es to be used by any person for purposes of homosexuahty or to commrt an offence under th$ Act, commlts an offence and rs liable, on convlctlon, to rmpnsonment for a penod not exceedrng one year.
Justification For claity and bexer drafihtg As required in sectwt 37 of the Interpretation Act, to prescribe tlrc ntaxmtunt penahy thot can be inryosed by court m order to recogtuse and maintqht court dt scretrc n in sentenc utg CI,,AUSE 13: SAME SEx GE For clause 13, there ts substltuted the followrng- " 13 Prohrbrtron ofmarnage between persons ofthe same gender (l) A person who- (a) contracts a marnage wtth a person of the same gender; (b)presrdes over, conducts, wtnesses or drects a m ceremony between persons of the same gender; or (c) knowmgly attends or partlclpates in the preparatton of a marrrage between persons ofthe same gender; 14 lPa s. 09 W commrts an offence and $ hable, on convtctlon, to lmprrsonment for a peflod not exceedrng ten years (2) In thts sectron, marnage means the umon, whether formal or mformal, betlveen persons ofthe same gender Justification o To operatronahze article 3l (2) (a) of the Constfiution which prohibts same ser nmrriages o For clarit), and better drafiing.
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As required in sectnn 37 of the Interpretaholt Act, to prescnbe tlrc maximum penalty that can be tmposed b), court m order to recogruse and maintain court d isctetion m sen tatc ir r g. .

To expand the provision to apply to all persons who participate in a,rlqrrzge or the marriage cerentony ofpersons ofthe same gender.
CLAUSE 14: PROMOTIONOFHOMO SEXUALITY For clause 14, there rs substltuted the followmg- ir,+ "Promotron of homosexualrty (l) A person who promotes homosexuality commtts an offence and rs hable, on convlctron, to lmprisonment for a term not exceedrng ten years.
(2) A person promotes homosexualrty where the person- (a) encourages or persuades another person to peform a sexual act wlth another person ofthe same gender or to do any other act that conshtutes an offence under thrs Act; (b) advertrses, publishes, pnnts, broadcasts, drstnbutes or ca the adyerhsement, pubhcation, pnntmg, broadcastlng dstributlon by any means, lncludng the use of a rnform on system or the lntemet, of 15 Png,l ob -w or encouragmg homosexualrty or the commrssron of an o{fence under thm Act; (c) provrdes financial support, whether m kmd or cash, to fac ltate actlvltles that encourage homosexualrty or the obsewance or normahsation of conduct that rs prohrbrted under thrs Act, (d) knowrngly leases or subleases, uses or allows another person to use any house, burldrng or establtshment for the purpose of undertaking actrvrtres that encourage homosexualrty or any other oflence under thrs Act, or (e) operates an organ$atron whlch promotes or encourages homosexualrty or the observance or normahsatlon of conduct that 1s prohlblted under thrs Act.
(3) Where an offence prescribed under thrs sectlon rs committed by a legal entlty, coult may- (a) hold a shareholder, drrector, employee, manager l officer or any other prmcrple officer rn the legal entity to be responsible for the actlons of the legal person and therefore hable for the offence commrtted and pumshed as provrded m thrs sectron, and any penalty strpulated m the rel (b) in addrtron to provtslon,- (r) 0t) impose a penalty not exceedrng fwenty thousand curency pomts for breach of any of the provtsions of thrs sectron; or suspend or cancel the hcense or other authorrsahon granted to the legal entlty to undertake any actr m Uganda."
Justification 16 lPa qe -W s o For clanty and better drafimg .

To expand tlrc prowston to cater for all acts done wfih the aun of encouragng the obsen ance ofcondua that is profubted under the Aa, .

To plohibts arts done m pubhc which trre colanlated to encourage homosennhty or the nomnlSatbn ofacts that are prohibited under the Act .
To granl addttonal powef to court where a legal entity commits an ofence LA I For clause 15, there rs substltuted the followmg- '(Rchabilitation of homoscxual (1) Court may, upon convrctlng a person for the offence of homosexualrty, order the provlslon social servrces for purposes of rehab ltaEng the convrcted person.
(2) The servrces refered to ln subsectron (1) may be provtded by the prison services or by a probatron, social and welfare oflicer of the area where the convrcted person rs serving hrs or her sentence " Justification To ntake the prowston drscretionary in light ofthe limited fesources.

To designate who s to prowde the rehabthtauon services referred to m the sectnn, For clarity and bexer drafimg.
CLAUSE 16: EXTRADITION Delete clause 16 Justification The prowxon is redundant smce ertradition thiyes ut rectprocal arrangenents of gwen states and in des for the Ertradition Act, Cap.l of 17 lPa 6!

qB ry ertrodfion of persons accused of ffimes contmitted within the juisdiction of another State.
INSERTION OF NEw CT,AIISE IMMEDIATELY BEFORE CI,AUSE 15 The B l rs amended by rnserhng the followmg new clauses rmmedtately before clause 15 as follows- '(Disqualifi cation ftom emplolmcnt upon conviction A person who is convrcted ofthe offence ofhomosexuahty or aggravated homosexualrty shall be drsqualtfied from employment m a ch d care rnstitutlon or rn any other rnstrtutron whrch places htm or her in a posltlon of authorrty or care ofa ch d or a vulnerable person unttl such a tlme a probatlon, socral and welfare officer determrnes that the person rs fully rehabilitated or no longer poses a danger to a chrld or other vulnerable person.
Disclosurc of scxual offcnccs record t)ffi-=\- (1) A person convrcted of an offence under thrs Act shall disclose the convrctlon when applyrng for emplolment in a chrld care insfltutron or any other mstttutron whrch places htm or her m a posltron of authonty or care ofa chlld or any other vulnerable person A (2) A person who contravenes subsectlon (l) commlts an offence ^^yLY Lable, on convlctlon, to rmpr$onment for a perrod not exceedmg tivo years and the employrnent ofthat person shall termmate.
Duty to Rcport acts of homoscxuality (1)A person, who knows or has reasonable suspicton that a person has to commlt the offence of homosexuality or any commrtted or 18 lPr:': w M s' other offence under this Act, shall report the matter to pohce for approprrate actron.
(2) A person who rs otherwrse prevented by priv ege liom makrng a report under subsechon (l) shall be immune Iiom any actron ansmg fiom the disclosure of rnformatron wlthout the consent or warver of pnvilege first been obtamed or had (3)A person who knowmg or havmg reason to beheve that a person has commrtted or rntends to commrt an offence and does not report the matter to pohce commits an offence and ts Lable to a frne of five thousand currency points or rmprrsonment for six months.
(4) A person who makes a report referred to m th$ subsectron shall be treated a wh$tle-blower and shall be protected {iom vlctrmzatlon (5)Thrs sectron shall not apply to an advocate " False sexual allcgations (1) A person who mtentronally makes false or misleadmg allegatrons agamst another person to the effect that the person has commrtted an offence under thls Act commlts an offence and rs hable, on convicflon, to rmpnsonment for one year (2) In thr sectlon, an allegahon ts false or mrsleading fat any stage of rnvestrgaflon or prosecuhon, rt rs proved that the alleged act drd not place or the rnformatlon was reported mahcrously Rcpcals Secflon 145 (a) and (c) of the Penal Code Act rs rep ed" Justification 19 IPage s -w The proposal to disqualify a persort coruicted of an ofence of homosexuality front enryloryent in a child care institution or in any other institution which places htm or her m a postttotl of authori4' or care of a child or a vulnenble person is intended to protect chidren and vanous other vulnerable people from exploitation The proposal to have a person conwaed of an ofence to disclose tlrc convictiorl when applying for entployment m (t chid care msttutton or any otlrcr institution whrch places lum or her in a positiort of authonty or core of a child or any other vulnerable persofl ts to enable such ittstitutions to nake an m,formed determmauon ofthe suitability of the person before employmg hin or her in such institution, The proposal to rnpose an obligation on a person to report ofences is htended to ensffe that inudents of hornosexuality are rcported and mvestigated The proposal to penalise persons who nake false or nisleading ollegattons is to guald agamst pe$ons who intafitonally make malicious and mrsleadmg reports to police in hght ofthe seriousness of the ofences The repeal ofsection 145 (a) and (c) is to harmoruse tlrc Bill with the prowsrorts of the Penal Code Aa and to ensure that only one ofence of homosexualty eists on the law book I bcg to move, 20lP a at w M \rd \.1 ffi PARLIAT{I NI OI I](IANI)A , \l.
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'flX MINORJTY REPORT TO THE REPORT OF THE SECTORAL COMMITTEE ON LEGAL AND PARLIAMENTARY AFFAIRS ON THE ANTI HOMOSEXUALITY BILL, 2023 OFFICE OT THE CLERK TO PARLIAMENT PARLIAMENT BUILDING KAMPALA-UGANDA MARCH 2023 1.O.
INTRODUCTION On Thursday, 9th March, 2023, a Btll entltled "The Antr-Homosexualrty Brll, 2023" was, rn accordance wlth Rule 128 of the Rules of Procedure of Parhament, read for a flrst tlme and referred to the Commrttee on I-egal and Parhamentary Affalrs for scrutrny.
2.O, OBJECT OF THD BILL The oblect of the Blll rs to estabhsh a comprehensrve and enhanced legtslahon to protect the tradlhonal famrly by- (a) prohrbrtng any form of sexual relatlons between persons of the same sex and the promotlon or recognthon of sexual relatrons between persons of the same sex, (b) strengtherung the natlon's capaclty to deal wrth emerglng mternal and external threats to the tradrttonal, heterosexual famrly Thrs legrslatron further recognzes the lact that same sex attractlon rs not an lnnate and lmmutable charactenstlc, (c) protechng the chenshed culture of the people of Uganda, legal, rellgrous, and tradrtronal famrly values of Ugandans agalnst the acts of sexual nghts actlvrsts seeklng to rmpose thelr values of sexual promlscurty on the people of Uganda, (d) protectrng chrldren and youth who are made vulnerable to sexual abuse through homosexuahty and related acts.
The Blll purports to address the gaps rn the provrsrons of other laws ln Uganda, for example the Penal Code Act, Cap 120, whrch allegedly has no comprehensrve provlslon catertng for antl,homosexualrty and only focuses on unnatural offences under secuon 145 and lacks provlstons for penahslng the procurement, promotmg, dtssemtnatlng hterature and other pornographtc materlals concermng the offences of homosexualrty 1 3.O.
POINAS OF DISSENT TO THE MAIN REPORT Rule 205 of the Rules of Procedure of Parllament grants a Member or Members drssentmg from the oprnron of a maJorlty of a Commlttee to state, m wrttmg, the reasons for hrs or her or thetr dlssent and the statements of reasons shall be appended to the report of the Commtttee In accordance wrth thls rule, we the m1nor1ty, advance the followlng reasons for dlssentrng wlth the maJorlty report- 3.1.
Thc Bill is misconcclvcd Honorable Members and Madam Speaker, the explanatory memorandum of the Br11 mdlcates that the mtentlon of the Brll rs desrgned to address the gaps rn the provrslons of other laws m Uganda, for example the Penal Code Act, Cap, 120 The explanatory memorandum further mdtcates that the penal Code Act, Cap 120 has no comprehenslve provlsron caterlng for antl-homosexuahty s1nce, accordlng to the 8111, the Penal Code Act focuses on unnatural offences under sectlon 145 and lacks provrsrons for penahsrng the procurement, promotrng, dtssemtnatlng hterature and other pantographrc matenals concernlng the offences of homosexualtty Honorable Members this rs not a lactual statement slnce we all know that homosexuahty rs an offence prescrrbed rn secbon 14S of the penal Code Act whrch rs reproduced below- * 7 4 5.
Unnqtural oflences Ang person uho- (Qhas carnal knowledge oJ ang person o.golnst the order oJ ndture; (b)has carnal knowled,ge oJ an q,nlmdl; or (c)pennits q. nd.le person to hqve carnq,l knouled,ge of hlm or her q.galflst the order ol nqture, comrnits q.n olJence and is lia.ble to imprisonment for lile."
2 The above sectron specrfically prohrblts and punrshes the conduct of a person who has carnal knowledge of any person agamst the order of nature as well as the conduct of a person who permtts a male person to have carnal knowledge of h1m or her agarnst the order ol nature Thls provlslon has been 1n the Penal Code Act for more than 1O0 years and for the member to state that there are no prousrons cnmrnalzrng homosexuahty ts drsrngenuous Whereas the term "homosexuah!/' rs not used specfically 1n sectlon 145 of the Penal Code Act, the provrslon specfically deals wrth conduct that amounts to homosexuahty and rt prohlblts 1t and anal sex.
The explanaton.
memorandum also rndrcates that the Penal Code Act focuses on unnatural offences under sectron 145 and lacks provtsrons for penahsrng the procurement, promotmg, drssemrnatrng hterature and other pantographlc matenals concerung the offences of homosexuahty Thrs rs not true slnce the prousrons of sectlon 145 crlmmahse, tn addttton to homosexuahty, sexual acts between anrmals and human bemgs In addrtton, the penal Code Act has comprehensrve provlslons that deal wlth penahslng the procurement, promotrng, dtssemtnatlng hterature and other pornographlc matertals concermng the offences of homosexualrty under the general prohrbrtron on consplracres under Chapter XLI of the penal Code Act, Cap l2O (conspracy to commlt felonv, consprracy to commtt mtsdemeanor and other consprracles) For lnstance, court 1n case ol Nq,bageserq, & 3 Ors a Attorneg Generq.l & Anor (Mlscell(I eous Co.use 33 o!
2012 rceogniscd thet thc actions of pctitioncr ill orgrlizing e wortshop advocatrng for normallzatron of mmorttlr nghts tn Uganda was a conspracy slnce rt engaged m the drrect and lndrect promotron of same-sex practlces whrch are prohrbrted by the penal Code Act Thrs means that acts that tend to promote homosexuahty can be dealt wtth as consprracles under the Penal Code Act We, the mmorlty surmlse that thts Brll was mtroduced under a reasonable but mrstaken behef that the Penal Code Act ts not sufflcrent to deal wlth the 3 matters relatmg to homosexualrty It was lntroduced durrng a trme when antl- homosexual sentrments have been wrped up across the country and 1s not based on any evrdence to show that rncldents of homosexuahty have rncreased and requrre addltronal legrslatrve rnterventrons Indeed, accordmg to the Annual Cnme Pohce Reports, lncldents of homosexualrty have been reducrng rn Uganda, peakrng m 2017 where 12O cases were reported, ln 2018, 10O cases were reported, m 2019, 103 cases were reported, 79 cases were reported rn 2O2O, aO cases were reported m 2021 ar,d.83 Ln 2022 Thrs means that the Ieglslatrve rnterventlons that are exlstng rn the laws of Uganda are havrng effect.
In llght of the above, we the mlnorrty find that the Br11 u'as mrsconcerved and serves no purpose 3 2 Critninalislng thc appcarancc of e person The second pomt of drssent ls that the Brll rn rts current form creates penal sanchons agamst a person merely based on appearance, thereby attempttng to reverse the decrston of court ln Kasho Jacquehne Vs Rollmg Stone Ltmtted & another, M6c Cause 163 of201O The mmorrty are aware that clause 2 (1) (d) of the B l proposes to declare as acts of homosexuahty a person who holds out as a lesblan, gay, transgender, a queer or any other sexual or gender tdentlty that ts contrary to the b1nary categones ol male and female Thrs provlslon has the effect of cnmlnallsng the persons who ldentlfy as lesbran, gay, transgender, a queer or any other sexual or gender ldentlty that ts contrary to the bmary categortes of male and female wlthout such persons havrng commltted an offence under the laws of Uganda The Commlttee was also rnformed by Uganda Medrcal Assocratron that there are some rare brologtcal cases affectng the genes that code for unusual expresslons of physrcal phenotyplc expresslon assoclated wtth the genltal organs.
These rnclude Khnefelter's SJmdrome ()Ory), a random genetlc occurrence when a boy has an extra X chromosome that emerges ln adulthood wlth Iemlnlne appearance and behavrour Another congenttal condltlon called 4 v Ambrguous gen1tal1a exrsts, rn thls case an lnfant's genltaha are not clear whether they are male or female Thrs condrtron, recognlzed rn early rnfancy, may be corrected by surgery after assesslng \ rhether the genes of the lnfant are male or female Uganda Medrcal Assocratlon proposes that the law should cater for such people ncludrng persons wlth genetlc abnormahtles and lnter sex persons who pose both male and female The DPP also cauttoned the Commlttee about clause 2 (1) (d) whrch seeks to punrsh a person based on appearance and reasoned that f a person holds out as a th1ef, he cannot be charged of theft unless there us clear evrdence that prove that he or she has elther stolen or attempted to steal anythlng The mrnorrty are concerned that the poltce has been arrestlng people based on thelr appearance as was found 1n the case Wctor Mukasa & Anoth.er us AltomeA General (Htgh Court Mtscellaneous Cause No 24 of 2OO6) where the plalntff 1n the case was arrested by pohce based on appearance and wlthout havmg commrtted an offence and taken to pohce to determrne her,,sexuah!y', The mlnorlty are aware that followng pohce conduct m Vlctor Mukasa supra, court gurded rn the case ol Kashct Jacquehne Vs Rollmg Stone Ltmlted & anottter, Mtsc Cause 163 of 2O1Othat 'the scope ofS 145 of the penal Code Act rs narrower than gayslm generally That one has to commlt an act under S 145 to be regarded as a crrmrnal" Thts decrsron means that betng or appeanng as a LGBTIQ+ person 1s not 1n ltself an offence untrl a person commlts any of the prohrblted acts under the law Thrs means that a person cannot be crrmrnahzed but the conduct of the person, tf contrary to the law, should be crrmrnalzed and puntshed The mlnortty are of the consrdered oprnton that thls Brll rs rntended to reverse the decrsron Kasha Jacquellne Vs Rolltng Stone Ltmtted & @nothe\ M]'sc Cause 163 of 2O1O by cnmrnallztng persons based on appearance and not prohlblted conduct 5 \y 3.3.
Duplicetion of provisiona ln the Pcnal Codc The thrrd polnt of drssent the mlnonty have wrth the maJorrty report concerns the duphcatlon of provlsrons that exlst rn other laws and are reproduced m the Br11 The mrnorrt5r note that malorlty of stakeholders who appeared before the Commrttee pornt out that the B 1 mtroduces nothlng of practrcal value and merely reproduces provrsrons that already exrst tn other laws Whereas the majorlt], oi the clauses of the Brll are unconstltutlonal, the rest are redundant and they become useless once the unconstltutlonal provlslons are removed The redundant clauses rnclude 5(2) - (4), 7, 9, lO, 11., 13, 15, 16 and 17 The Blll rs a duphcatlon of the provrsron already rn place under the penal Code and 1S Unnecessary The DPP also oblected to the B l on grounds that the proposals contalned rn the B 1should be rntroduced 1n the Penal Code Act rather than bemg rntroduced ln the proposed Br11 The DPp reasoned that the penal Code has overtrme been dlsntegrated chapter by chapter, leadlng to scatterrng of the provlslons The Attorney General advrsed and pornted out a number of provrsrons that are already prescrrbed rn our laws, makrng the Brll redundant and of no le$slattve value The mlnorlty flnd the follourng provrsrons redundant- (a) Clause 1 defines matters that are ready provrded rn other laws, lncludlng the Penal Code Act (b) Clause I on the offence of Homosexuahty rs provrded m sectton 145 of the Penal Code Act, (c) Clause 2 of the offence of aggravated homosexuahty can be prevented ln sectron 129 of the Penal Code Act on the oflence of defilement, (d) Clause 4 ls already prescrrbed 1n sectlon 146 of the penal Code Act, 6 I l L=' (") Clause 7 ls well entrenched rn artrcle 28 (2) of the Constltutron whlch grves ludrcral dlscretlon to a court or tnbunal to exclude the press or the pubhc from all or any proceedrngs before rt, for reasons of moralrty, pubhc order or natlonal secunty, as may be rn a free and democratrc soclety (0 Clause 8 rs already provrded for 1n sectron 19(1)(c) of the
 Penal Code Act, Cap 120 (g) Clause 9 ol the Br11 already exlsts rn Chapter XLI of the Penal Code Act, Cap 120 as an offence, (h) clause 11 rs already provrded under ln sectlon 134 ol the Penal Code Act, Cap 120 whrch broadly crrmrnahzes detentron wrth crrmrnal rntent (r) Clause 13 rs redundant srnce artlcle 31 (2) speclflcally bans same sex marnages and the marrrage Act deflnes a marrlage and does not rnclude same sex marrrage fu) Clause 16 rs redundant srnce there exlsts a law to regulate extradrtlons from and to Uganda, berng the Extradrtlon Act, Cap 117 The mrnorrty are aware that the provlsrons of thrs Brll once passed mto law wrll comphcate the prosecuhon of offences under the Penal Code Act slnce there wrll be multrple offences, wrth varvrng penaltres The mlnorlty know that sectron 39 of the Interpretatton Act, Cap 3 provtdes gurdance on an act whrch constrtutes an offence under two or more laws.
Sectlon 39 provtdes as follows- "Wlere qt7 qct constfiutes an offence under two or more enactmentg then the offender shall be llable to be proseanted and purush.ed under etther or anA of th.ose enactments, but shall not be lwble to be purusLted.

h.Dtce for the same offence."
The Commlttee \1'as cauttoned by the Attorney General that there rs nothmg prevents Parhament from enactlng new laws or rndeed tmprovlng on extstlng provlslons of the las' to meet emergrng challenges 1n or of socrety as long rt cautrons rtself agalnst dupllcahon provlsron ln other la$,s r 3 4 Constitutionallty ofthc Blll The Brll makes provrslon for the matters whrch rnfnngmg the Constltutron of the Repubhc of Uganda, 1995 rncludrng atlrcle 27 on the rlght to prlvacy, ar1jcle 24 and 44 la) relatrng to non derogable rrght to freedom from rnhuman and degradrng treatment as protected under arttcle 24 and arbcle 44(a) ar\d artrcle 21 of the Constrtutron on the rlght agarnst dlscnmtnatron, The B l goes beyond the hmltatlons envrsaged ln arttcle 43 of the Constltutlon and some provlslons contravene the prtnctple of legalrty prescrrbed ln artlcle 28 (12) ol the Constltxtron.
Not only does the Brll contravene provlslons of the Constltutlon of the Repubhc of Uganda, rt also contravenes establlshed nternatlonal and regronal human nghts standards, as rt unfarrly llmlts the fundamental nghts of LGBTIe persons.
Thrs crrmrnahzatron also denres them equal protechon under the law, owlng to the harsh drfferentral treatment they recelve based on therr sexual onentatlon and the crtmmalzatlon of the same The provrslons that nlrmge the Constrtutlon lnclude- (") Clauses 3(1) (b) and (e), whrch make the offence of homosexuahty aggravated when the offender ts a person Lvtng wlth HIV and when the vrctlm rs a person wlth a dtsablltty would vrolate artlcle 21 of the Constrtutlon as they would be dtscrtmrnatory The drscrrmrnatron rs on the basrs of HIV status and bemg a person wrth dtsablhty These provrsrons perpetuate the stereotype that People Llvlng wlth HIV (PLWHIV) cannot engage ln safe adult-to-adult sex and that people wrth Drsabrlrtres (PWDs) are emlnently vlctrms 1n human relatronshlps (b) Clause 5(1), whlch provldes that 'a vtctrm of homosexualrtv shall not be penalzed for any crrme commltted as a drect result of hts or her 8 rnvolvement 1n homosexuahty' combrned wlth the defin1t1on of trctrm' rn clause 1 as rncludrng 'a person who rs mvolved rn homosexual actlvrtles aganst hrs or her wrll'lntroduces the'homosexual panrc' defence, whrch essentrally grves so called ttctrms'leeway to harm suspected LGBTIQ persons and get away scot free, thereby contravenlng the presumptlon of tnnocence guaranteed under artlcle 28 {3) (a) of the Constrtutron (c) Clauses 1, 2(1)(d), (3(1)(b), (e), and (0, a(1) and 8 m as a far as they define 'touchrng' as constltutmg the offence ol 'homosexuahty', 'aggravated homosexuahty', 'attempts to commlt homosexuallty', and 'ardrng and abetttng' homosexuahty respectlvely would vrolate the prrncrple of legahty under Artlcle 28112) ol the Constltutlon Thls provrslon requres that all cnmmal offences be properly defined, and ls part of the non-derogable rlght to a farr hearrng protected under Artrcle 28 and Artrcle 44(c) of the Constltutlon Court has declared provlslons of laws that are rncapable of exact defnltton unconstltutlonal.
It rs therefore the posrtron of the mmorlty that the prouslons of the Br[ f passed lnto law u'rll rnfrrnge the nghts of Ugandans, specrfically the rlghts and freedom of expresslon, assoclatlon, and hberty, prrvacy, Equalrty and Freedom from Dlscrrmlnatlon, lnhuman and Degradrng Treatment, nght to farr hearrng and finds that f Parhament enacts thls law, rt wrll be challenged before the Constltutlonal Court and struck off.

3,5.
Thc rcvcrses thc gains rcgistcrcd in thc fight agalnst gendcr bescd violencc cspccitlly againat woEcu end girls Some clauses of the B 1reverse the galns regrstered ln the fight agarnst gender based v1olence, especrally of women and chrldren The Br11 rn clauses 2 and 3 of the Brll makes prouslon for the offence of homosexualrty and aggravated 9 '-i homosexuahty The provrsrons prescrrbe sanchons of ten years agalnst a person who rnfnnges the provlsrons of the B l The mmorrty has examrned these provtslons and finds them to rnlrlnge sectlon 123 ar.d 129 of the Penal Code Act whrch create the offence of rape and defilement, respectrvely These oflences prescrrbe varyrng sentences agarnst a person who conducts hrmsell or herself rn a manner that constltutes the offence rangmg from death and hfe tmprrsonment The B 1 now proposes to make varlous lndlrect amendments to those provtsrons of the Penal Code Act by reducrng the penaltles for the same conduct that rs prohrbrted under sectlons 123 and 129 of the Penal Code Act from death and lfe rmprrsonment to 10 years rmpnsonment Thts makes the provrston regresslve, affects the fight agalnst gender based vrolence agamst grrls and women and reverses the galns so far regrstered 1n the fight agalnst rape and defilement by reducrng the severlty of the penaltles prescrrbed lor those offences 4.O.
CONCLUSIONSAND RECOMMENDATIONS The mrnorlty have examrned the B[1 and are of the consrdered oplnron that the Br11 rs mtsconcerved, 1t contalns provlslons that are unconstltutlonal, reverses the galns reglstered 1n the fight agalnst gender based vrolence and crlmlnahzes rndrvrduals rnstead of conduct that contravenes legal provrsrons The B11l does not rntroduce any value addttton to the statute book and ava able leglslattve framework.
In llght of the above, the mlnorlty recommend the followrng- (a) The splrlt of the Antt-Homosexuahty Btll,2023 gurdes the enrlchment of a comprehensrve non-dtscrlmlnatory sexual offences E}111, (b) The proposals contarned rn the B1l1 should be presented to the Law Relorm Commrssron to study and advrce Government on the possrble reforms of sexual offences lav/s (c) That Government should rntroduce leglslatlon and a framework for the provrsron of rehabthtatlon of vlctrms of sexual and gender based vrolence.
10 (d) That the exlstmg legrslatlon ne amended to provrde clarrt-y where necessary Rt Hon Speaker and Hon Members.

I beg to report 11 ENDORSEMENT OF THE MINORITY REPORT TO THE REPORT OF THE SECTORAL COMMITTEE ON LEGAL AND PARLIAMENTARY AFFAIRS ON ?HE ANTI HOMOSEXUALITY BILL,2023 NO.

NAME 0l bx Ubpt- Dvut€L>ti,t (,; ;t.:t4t I t,l *--',,- ;, 1.

CONSTITUENCY S(]NATURE,<2 ID&N L t, ktvr"gM' C4'y^ t, 12